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[House Report 112-596]
[From the U.S. Government Publishing Office]

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

                             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

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

  ``(a) Congressional Declaration of Purpose.--The purpose of this 
subchapter is to establish a framework and procedures to streamline, 
increase the efficiency of, and enhance coordination of agency 
administration of the regulatory review, environmental decisionmaking, 
and permitting process for projects undertaken, reviewed, or funded by 
Federal agencies. This subchapter will ensure that agencies administer 
the regulatory process in a manner that is efficient so that citizens 
are not burdened with regulatory excuses and time delays.
  ``(b) Definitions.--For purposes of this subchapter, the term--
          ``(1) `agency' means any agency, department, or other unit of 
        Federal, State, local, or Indian tribal government;
          ``(2) `category of projects' means 2 or more projects related 
        by project type, potential environmental impacts, geographic 
        location, or another similar project feature or characteristic;
          ``(3) `environmental assessment' means a concise public 
        document for which a Federal agency is responsible that serves 
        to--
                  ``(A) briefly provide sufficient evidence and 
                analysis for determining whether to prepare an 
                environmental impact statement or a finding of no 
                significant impact;
                  ``(B) aid an agency's compliance with NEPA when no 
                environmental impact statement is necessary; and
                  ``(C) facilitate preparation of an environmental 
                impact statement when one is necessary;
          ``(4) `environmental impact statement' means the detailed 
        statement of significant environmental impacts required to be 
        prepared under NEPA;
          ``(5) `environmental review' means the Federal agency 
        procedures for preparing an environmental impact statement, 
        environmental assessment, categorical exclusion, or other 
        document under NEPA;
          ``(6) `environmental decisionmaking process' means the 
        Federal agency procedures for undertaking and completion of any 
        environmental permit, decision, approval, review, or study 
        under any Federal law other than NEPA for a project subject to 
        an environmental review;
          ``(7) `environmental document' means an environmental 
        assessment or environmental impact statement, and includes any 
        supplemental document or document prepared pursuant to a court 
        order;
          ``(8) `finding of no significant impact' means a document by 
        a Federal agency briefly presenting the reasons why a project, 
        not otherwise subject to a categorical exclusion, will not have 
        a significant effect on the human environment and for which an 
        environmental impact statement therefore will not be prepared;
          ``(9) `lead agency' means the Federal agency preparing or 
        responsible for preparing the environmental document;
          ``(10) `NEPA' means the National Environmental Policy Act of 
        1969 (42 U.S.C. 4321 et seq.);
          ``(11) `project' means major Federal actions that are 
        construction activities undertaken with Federal funds or that 
        are construction activities that require approval by a permit 
        or regulatory decision issued by a Federal agency;
          ``(12) `project sponsor' means the agency or other entity, 
        including any private or public-private entity, that seeks 
        approval for a project or is otherwise responsible for 
        undertaking a project; and
          ``(13) `record of decision' means a document prepared by a 
        lead agency under NEPA following an environmental impact 
        statement that states the lead agency's decision, identifies 
        the alternatives considered by the agency in reaching its 
        decision and states whether all practicable means to avoid or 
        minimize environmental harm from the alternative selected have 
        been adopted, and if not, why they were not adopted.
  ``(c) Preparation of Environmental Documents.--Upon the request of 
the lead agency, the project sponsor shall be authorized to prepare any 
document for purposes of an environmental review required in support of 
any project or approval by the lead agency if the lead agency furnishes 
oversight in such preparation and independently evaluates such document 
and the document is approved and adopted by the lead agency prior to 
taking any action or making any approval based on such document.
  ``(d) Adoption and Use of Documents.--
          ``(1) Documents prepared under nepa.--
                  ``(A) Not more than 1 environmental impact statement 
                and 1 environmental assessment shall be prepared under 
                NEPA for a project (except for supplemental 
                environmental documents prepared under NEPA or 
                environmental documents prepared pursuant to a court 
                order), and, except as otherwise provided by law, the 
                lead agency shall prepare the environmental impact 
                statement or environmental assessment. After the lead 
                agency issues a record of decision, no Federal agency 
                responsible for making any approval for that project 
                may rely on a document other than the environmental 
                document prepared by the lead agency.
                  ``(B) Upon the request of a project sponsor, a lead 
                agency may adopt, use, or rely upon secondary and 
                cumulative impact analyses included in any 
                environmental document prepared under NEPA for projects 
                in the same geographic area where the secondary and 
                cumulative impact analyses provide information and data 
                that pertains to the NEPA decision for the project 
                under review.
          ``(2) State environmental documents; supplemental 
        documents.--
                  ``(A) Upon the request of a project sponsor, a lead 
                agency may adopt a document that has been prepared for 
                a project under State laws and procedures as the 
                environmental impact statement or environmental 
                assessment for the project, provided that the State 
                laws and procedures under which the document was 
                prepared provide environmental protection and 
                opportunities for public involvement that are 
                substantially equivalent to NEPA.
                  ``(B) An environmental document adopted under 
                subparagraph (A) is deemed to satisfy the lead agency's 
                obligation under NEPA to prepare an environmental 
                impact statement or environmental assessment.
                  ``(C) In the case of a document described in 
                subparagraph (A), during the period after preparation 
                of the document but before its adoption by the lead 
                agency, the lead agency shall prepare and publish a 
                supplement to that document if the lead agency 
                determines that--
                          ``(i) a significant change has been made to 
                        the project that is relevant for purposes of 
                        environmental review of the project; or
                          ``(ii) there have been significant changes in 
                        circumstances or availability of information 
                        relevant to the environmental review for the 
                        project.
                  ``(D) If the agency prepares and publishes a 
                supplemental document under subparagraph (C), the lead 
                agency may solicit comments from agencies and the 
                public on the supplemental document for a period of not 
                more than 45 days beginning on the date of the 
                publication of the supplement.
                  ``(E) A lead agency shall issue its record of 
                decision or finding of no significant impact, as 
                appropriate, based upon the document adopted under 
                subparagraph (A), and any supplements thereto.
          ``(3) Contemporaneous projects.--If the lead agency 
        determines that there is a reasonable likelihood that the 
        project will have similar environmental impacts as a similar 
        project in geographical proximity to the project, and that 
        similar project was subject to environmental review or similar 
        State procedures within the 5 year period immediately preceding 
        the date that the lead agency makes that determination, the 
        lead agency may adopt the environmental document that resulted 
        from that environmental review or similar State procedure. The 
        lead agency may adopt such an environmental document, if it is 
        prepared under State laws and procedures only upon making a 
        favorable determination on such environmental document pursuant 
        to paragraph (2)(A).
  ``(e) Participating Agencies.--
          ``(1) In general.--The lead agency shall be responsible for 
        inviting and designating participating agencies in accordance 
        with this subsection. The lead agency shall provide the 
        invitation or notice of the designation in writing.
          ``(2) Federal participating agencies.--Any Federal agency 
        that is required to adopt the environmental document of the 
        lead agency for a project shall be designated as a 
        participating agency and shall collaborate on the preparation 
        of the environmental document, unless the Federal agency 
        informs the lead agency, in writing, by a time specified by the 
        lead agency in the designation of the Federal agency that the 
        Federal agency--
                  ``(A) has no jurisdiction or authority with respect 
                to the project;
                  ``(B) has no expertise or information relevant to the 
                project; and
                  ``(C) does not intend to submit comments on the 
                project.
          ``(3) Invitation.--The lead agency shall identify, as early 
        as practicable in the environmental review for a project, any 
        agencies other than an agency described in paragraph (2) that 
        may have an interest in the project, including, where 
        appropriate, Governors of affected States, and heads of 
        appropriate tribal and local (including county) governments, 
        and shall invite such identified agencies and officials to 
        become participating agencies in the environmental review for 
        the project. The invitation shall set a deadline of 30 days for 
        responses to be submitted, which may only be extended by the 
        lead agency for good cause shown. Any agency that fails to 
        respond prior to the deadline shall be deemed to have declined 
        the invitation.
          ``(4) Effect of declining participating agency invitation.--
        Any agency that declines a designation or invitation by the 
        lead agency to be a participating agency shall be precluded 
        from submitting comments on any document prepared under NEPA 
        for that project or taking any measures to oppose, based on the 
        environmental review, any permit, license, or approval related 
        to that project.
          ``(5) Effect of designation.--Designation as a participating 
        agency under this subsection does not imply that the 
        participating agency--
                  ``(A) supports a proposed project; or
                  ``(B) has any jurisdiction over, or special expertise 
                with respect to evaluation of, the project.
          ``(6) Cooperating agency.--A participating agency may also be 
        designated by a lead agency as a `cooperating agency' under the 
        regulations contained in part 1500 of title 40, Code of Federal 
        Regulations, as in effect on January 1, 2011. Designation as a 
        cooperating agency shall have no effect on designation as 
        participating agency. No agency that is not a participating 
        agency may be designated as a cooperating agency.
          ``(7) Concurrent reviews.--Each Federal agency shall--
                  ``(A) carry out obligations of the Federal agency 
                under other applicable law concurrently and in 
                conjunction with the review required under NEPA; and
                  ``(B) in accordance with the rules made by the 
                Council on Environmental Quality pursuant to subsection 
                (n)(1), make and carry out such rules, policies, and 
                procedures as may be reasonably necessary to enable the 
                agency to ensure completion of the environmental review 
                and environmental decisionmaking process in a timely, 
                coordinated, and environmentally responsible manner.
          ``(8) Comments.--Each participating agency shall limit its 
        comments on a project to areas that are within the authority 
        and expertise of such participating agency. Each participating 
        agency shall identify in such comments the statutory authority 
        of the participating agency pertaining to the subject matter of 
        its comments. The lead agency shall not act upon, respond to or 
        include in any document prepared under NEPA, any comment 
        submitted by a participating agency that concerns matters that 
        are outside of the authority and expertise of the commenting 
        participating agency.
  ``(f) Project Initiation Request.--
          ``(1) Notice.--A project sponsor shall provide the Federal 
        agency responsible for undertaking a project with notice of the 
        initiation of the project by providing a description of the 
        proposed project, the general location of the proposed project, 
        and a statement of any Federal approvals anticipated to be 
        necessary for the proposed project, for the purpose of 
        informing the Federal agency that the environmental review 
        should be initiated.
          ``(2) Lead agency initiation.--The agency receiving a project 
        initiation notice under paragraph (1) shall promptly identify 
        the lead agency for the project, and the lead agency shall 
        initiate the environmental review within a period of 45 days 
        after receiving the notice required by paragraph (1) by 
        inviting or designating agencies to become participating 
        agencies, or, where the lead agency determines that no 
        participating agencies are required for the project, by taking 
        such other actions that are reasonable and necessary to 
        initiate the environmental review.
  ``(g) Alternatives Analysis.--
          ``(1) Participation.--As early as practicable during the 
        environmental review, but no later than during scoping for a 
        project requiring the preparation of an environmental impact 
        statement, the lead agency shall provide an opportunity for 
        involvement by cooperating agencies in determining the range of 
        alternatives to be considered for a project.
          ``(2) Range of alternatives.--Following participation under 
        paragraph (1), the lead agency shall determine the range of 
        alternatives for consideration in any document which the lead 
        agency is responsible for preparing for the project, subject to 
        the following limitations:
                  ``(A) No evaluation of certain alternatives.--No 
                Federal agency shall evaluate any alternative that was 
                identified but not carried forward for detailed 
                evaluation in an environmental document or evaluated 
                and not selected in any environmental document prepared 
                under NEPA for the same project.
                  ``(B) Only feasible alternatives evaluated.--Where a 
                project is being constructed, managed, funded, or 
                undertaken by a project sponsor that is not a Federal 
                agency, Federal agencies shall only be required to 
                evaluate alternatives that the project sponsor could 
                feasibly undertake, consistent with the purpose of and 
                the need for the project, including alternatives that 
                can be undertaken by the project sponsor and that are 
                technically and economically feasible.
          ``(3) Methodologies.--
                  ``(A) In general.--The lead agency shall determine, 
                in collaboration with cooperating agencies at 
                appropriate times during the environmental review, the 
                methodologies to be used and the level of detail 
                required in the analysis of each alternative for a 
                project. The lead agency shall include in the 
                environmental document a description of the 
                methodologies used and how the methodologies were 
                selected.
                  ``(B) No evaluation of inappropriate alternatives.--
                When a lead agency determines that an alternative does 
                not meet the purpose and need for a project, that 
                alternative is not required to be evaluated in detail 
                in an environmental document.
          ``(4) Preferred alternative.--At the discretion of the lead 
        agency, the preferred alternative for a project, after being 
        identified, may be developed to a higher level of detail than 
        other alternatives in order to facilitate the development of 
        mitigation measures or concurrent compliance with other 
        applicable laws if the lead agency determines that the 
        development of such higher level of detail will not prevent the 
        lead agency from making an impartial decision as to whether to 
        accept another alternative which is being considered in the 
        environmental review.
          ``(5) Employment analysis.--The evaluation of each 
        alternative in an environmental impact statement or an 
        environmental assessment shall identify the potential effects 
        of the alternative on employment, including potential short-
        term and long-term employment increases and reductions and 
        shifts in employment.
  ``(h) Coordination and Scheduling.--
          ``(1) Coordination plan.--
                  ``(A) In general.--The lead agency shall establish 
                and implement a plan for coordinating public and agency 
                participation in and comment on the environmental 
                review for a project or category of projects to 
                facilitate the expeditious resolution of the 
                environmental review.
                  ``(B) Schedule.--
                          ``(i) In general.--The lead agency shall 
                        establish as part of the coordination plan for 
                        a project, after consultation with each 
                        participating agency and, where applicable, the 
                        project sponsor, a schedule for completion of 
                        the environmental review. The schedule shall 
                        include deadlines, consistent with subsection 
                        (i), for decisions under any other Federal laws 
                        (including the issuance or denial of a permit 
                        or license) relating to the project that is 
                        covered by the schedule.
                          ``(ii) Factors for consideration.--In 
                        establishing the schedule, the lead agency 
                        shall consider factors such as--
                                  ``(I) the responsibilities of 
                                participating agencies under applicable 
                                laws;
                                  ``(II) resources available to the 
                                participating agencies;
                                  ``(III) overall size and complexity 
                                of the project;
                                  ``(IV) overall schedule for and cost 
                                of the project;
                                  ``(V) the sensitivity of the natural 
                                and historic resources that could be 
                                affected by the project; and
                                  ``(VI) the extent to which similar 
                                projects in geographic proximity were 
                                recently subject to environmental 
                                review or similar State procedures.
                          ``(iii) Compliance with the schedule.--
                                  ``(I) All participating agencies 
                                shall comply with the time periods 
                                established in the schedule or with any 
                                modified time periods, where the lead 
                                agency modifies the schedule pursuant 
                                to subparagraph (D).
                                  ``(II) The lead agency shall 
                                disregard and shall not respond to or 
                                include in any document prepared under 
                                NEPA, any comment or information 
                                submitted or any finding made by a 
                                participating agency that is outside of 
                                the time period established in the 
                                schedule or modification pursuant to 
                                subparagraph (D) for that agency's 
                                comment, submission or finding.
                                  ``(III) If a participating agency 
                                fails to object in writing to a lead 
                                agency decision, finding or request for 
                                concurrence within the time period 
                                established under law or by the lead 
                                agency, the agency shall be deemed to 
                                have concurred in the decision, finding 
                                or request.
                  ``(C) Consistency with other time periods.--A 
                schedule under subparagraph (B) shall be consistent 
                with any other relevant time periods established under 
                Federal law.
                  ``(D) Modification.--The lead agency may--
                          ``(i) lengthen a schedule established under 
                        subparagraph (B) for good cause; and
                          ``(ii) shorten a schedule only with the 
                        concurrence of the cooperating agencies.
                  ``(E) Dissemination.--A copy of a schedule under 
                subparagraph (B), and of any modifications to the 
                schedule, shall be--
                          ``(i) provided within 15 days of completion 
                        or modification of such schedule to all 
                        participating agencies and to the project 
                        sponsor; and
                          ``(ii) made available to the public.
                  ``(F) Roles and responsibility of lead agency.--With 
                respect to the environmental review for any project, 
                the lead agency shall have authority and responsibility 
                to take such actions as are necessary and proper, 
                within the authority of the lead agency, to facilitate 
                the expeditious resolution of the environmental review 
                for the project.
  ``(i) Deadlines.--The following deadlines shall apply to any project 
subject to review under NEPA and any decision under any Federal law 
relating to such project (including the issuance or denial of a permit 
or license or any required finding):
          ``(1) Environmental review deadlines.--The lead agency shall 
        complete the environmental review within the following 
        deadlines:
                  ``(A) Environmental impact statement projects.--For 
                projects requiring preparation of an environmental 
                impact statement--
                          ``(i) the lead agency shall issue an 
                        environmental impact statement within 2 years 
                        after the earlier of the date the lead agency 
                        receives the project initiation request or a 
                        Notice of Intent to Prepare an Environmental 
                        Impact Statement is published in the Federal 
                        Register; and
                          ``(ii) in circumstances where the lead agency 
                        has prepared an environmental assessment and 
                        determined that an environmental impact 
                        statement will be required, the lead agency 
                        shall issue the environmental impact statement 
                        within 2 years after the date of publication of 
                        the Notice of Intent to Prepare an 
                        Environmental Impact Statement in the Federal 
                        Register.
                  ``(B) Environmental assessment projects.--For 
                projects requiring preparation of an environmental 
                assessment, the lead agency shall issue a finding of no 
                significant impact or publish a Notice of Intent to 
                Prepare an Environmental Impact Statement in the 
                Federal Register within 1 year after the earlier of the 
                date the lead agency receives the project initiation 
                request, makes a decision to prepare an environmental 
                assessment, or sends out participating agency 
                invitations.
          ``(2) Extensions.--
                  ``(A) Requirements.--The environmental review 
                deadlines may be extended only if--
                          ``(i) a different deadline is established by 
                        agreement of the lead agency, the project 
                        sponsor, and all participating agencies; or
                          ``(ii) the deadline is extended by the lead 
                        agency for good cause.
                  ``(B) Limitation.--The environmental review shall not 
                be extended by more than 1 year for a project requiring 
                preparation of an environmental impact statement or by 
                more than 180 days for a project requiring preparation 
                of an environmental assessment.
          ``(3) Environmental review comments.--
                  ``(A) Comments on draft environmental impact 
                statement.--For comments by agencies and the public on 
                a draft environmental impact statement, the lead agency 
                shall establish a comment period of not more than 60 
                days after publication in the Federal Register of 
                notice of the date of public availability of such 
                document, unless--
                          ``(i) a different deadline is established by 
                        agreement of the lead agency, the project 
                        sponsor, and all participating agencies; or
                          ``(ii) the deadline is extended by the lead 
                        agency for good cause.
                  ``(B) Other comments.--For all other comment periods 
                for agency or public comments in the environmental 
                review process, the lead agency shall establish a 
                comment period of no more than 30 days from 
                availability of the materials on which comment is 
                requested, unless--
                          ``(i) a different deadline is established by 
                        agreement of the lead agency, the project 
                        sponsor, and all participating agencies; or
                          ``(ii) the deadline is extended by the lead 
                        agency for good cause.
          ``(4) Deadlines for decisions under other laws.--
        Notwithstanding any other provision of law, in any case in 
        which a decision under any other Federal law relating to the 
        undertaking of a project being reviewed under NEPA (including 
        the issuance or denial of a permit or license) is required to 
        be made, the following deadlines shall apply:
                  ``(A) Decisions prior to record of decision or 
                finding of no significant impact.--If a Federal agency 
                is required to approve, or otherwise to act upon, a 
                permit, license, or other similar application for 
                approval related to a project prior to the record of 
                decision or finding of no significant impact, such 
                Federal agency shall approve or otherwise act not later 
                than the end of a 90 day period beginning--
                          ``(i) after all other relevant agency review 
                        related to the project is complete; and
                          ``(ii) after the lead agency publishes a 
                        notice of the availability of the final 
                        environmental impact statement or issuance of 
                        other final environmental documents, or no 
                        later than such other date that is otherwise 
                        required by law, whichever event occurs first.
                  ``(B) Other decisions.--With regard to any approval 
                or other action related to a project by a Federal 
                agency that is not subject to subparagraph (A), each 
                Federal agency shall approve or otherwise act not later 
                than the end of a period of 180 days beginning--
                          ``(i) after all other relevant agency review 
                        related to the project is complete; and
                          ``(ii) after the lead agency issues the 
                        record of decision or finding of no significant 
                        impact, unless a different deadline is 
                        established by agreement of the Federal agency, 
                        lead agency, and the project sponsor, where 
                        applicable, or the deadline is extended by the 
                        Federal agency for good cause, provided that 
                        such extension shall not extend beyond a period 
                        that is 1 year after the lead agency issues the 
                        record of decision or finding of no significant 
                        impact.
                  ``(C) Failure to act.--In the event that any Federal 
                agency fails to approve, or otherwise to act upon, a 
                permit, license, or other similar application for 
                approval related to a project within the applicable 
                deadline described in subparagraph (A) or (B), the 
                permit, license, or other similar application shall be 
                deemed approved by such agency and the agency shall 
                take action in accordance with such 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 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 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 
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\
---------------------------------------------------------------------------
    \1\Responsibly And Professionally Invigorating Development (RAPID) 
Act of 2012: Hearing before the Subcomm. on Courts, Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 112th Cong. (Apr. 
25, 2012), (hereinafter ``RAPID Act Hearing'') at 61 (Testimony of Gus 
Bauman).
    \2\Id. at 43 (Testimony of William Kovacs).
    \3\Id. at 61 (Testimony of Gus Bauman).
    \4\Id. at 39 (Testimony of William Kovacs).
    \5\See Piet deWitt & Carole deWitt, ``How Long Does It Take to 
Prepare and Environmental Impact Statement?,'' Environmental Practice 
10, pp. 164-174 (Dec. 2008).
---------------------------------------------------------------------------

            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\
---------------------------------------------------------------------------
    \6\42 U.S.C. Sec. 4331.
    \7\Id. Sec. 4332(2)(C).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\See generally Kristina Alexander, Overview of National 
Environmental Policy Act (NEPA) Requirements (CRS RS20621 Jan. 12, 
2011).
    \9\Id. at 3.
---------------------------------------------------------------------------
    ``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\
---------------------------------------------------------------------------
    \10\Linda Luther, The National Environmental Policy Act (NEPA): 
Background and Implementation, at 15 (CRS RL33152 Jan. 10, 2011).
    \11\RAPID Act Hearing, note 1 supra, at 201 (Testimony of Thomas 
Margro).
---------------------------------------------------------------------------
    An EIS ensures that agencies carefully consider a proposed 
action's environmental impacts during, and provides 
transparency into, the decision-making process. ``NEPA does not 
require the agency to choose the most environmentally 
preferable alternative.''\12\ Regulations require robust public 
participation in this process, from the ``scoping'' stage where 
issues are identified, through drafting and in the final EIS, 
which should respond to comments made throughout. Public 
hearings may be utilized.\13\ Because NEPA does not create a 
cause of action, lawsuits challenging an agency's review are 
brought under the APA's 6-year statute of limitations.\14\
---------------------------------------------------------------------------
    \12\Alexander, note 8 supra, at 4; see also Robertson v. Methow 
Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA ``does not 
mandate particular results, but simply prescribes the necessary 
process.'').
    \13\Alexander, note 8 supra, at 4-5.
    \14\See 28 U.S.C. Sec. 2401.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \15\Luther, note 10 supra, at 25.
---------------------------------------------------------------------------

               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.
---------------------------------------------------------------------------
    \16\See 28 U.S.C. Sec. 4342.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
    \17\40 C.F.R. Sec. 1508.16.
    \18\Id. Sec. 1501.7.

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

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

         LEliminating insignificant issues;

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

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

    The alternatives section ``is the heart of the 
environmental impact statement.''\21\ The lead agency must 
``rigorously explore and objectively evaluate all reasonable 
alternatives'' and explain why other alternatives have been 
excluded.\22\ The EIS must ``devote substantial treatment to 
each alternative in detail'' (including the alternative of no 
action) so the reader may evaluate them comparatively, and give 
the lead agency's preferred alternative in the draft EIS and 
chosen alternative in the final EIS.\23\ The lead agency may 
set time and page limits for preparing the EIS, although none 
are required.\24\
---------------------------------------------------------------------------
    \21\Id. Sec. 1502.14.
    \22\Id. Sec. 1502.14(a).
    \23\Id. Sec. 1502.14(b)-(f).
    \24\Id. Sec. 1501.7(b).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \25\Id. Sec. 1502.9.
    \26\Id. Sec. 1503.1(a)(4) (The lead agency shall ``affirmatively 
solicit[] comments from those persons or organizations who may be 
interested or affected'').
    \27\Id. Sec. 1502.10. (The recommended format is: Cover sheet; 
Summary; Table of contents; Purpose of and need for action; 
Alternatives including proposed action; Affected environment; 
Environmental consequences; List of preparers; List of Agencies, 
Organizations, and persons to whom copies of the statement are sent; 
Index; Appendices (if any)).
---------------------------------------------------------------------------
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 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\
---------------------------------------------------------------------------
    \28\Id. Sec. Sec. 1501.3, 1507.3.
    \29\Id. Sec. 1501.3(b).
    \30\Id. Sec. 1508.9(a).
    \31\Id. Sec. 1508.9(b).
    \32\Id. Sec. 1507.3(b).
---------------------------------------------------------------------------

              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\
---------------------------------------------------------------------------
    \33\See generally Luther, note 10 supra, at 26-29; Linda Luther, 
The National Environmental Policy Act: Streamlining NEPA, at 7-10 
(RL33267 Dec. 6, 2007).
    \34\RAPID Act Hearing, note 1 supra, at 47-48 (Testimony of William 
Kovacs).
    \35\Available at http://www.law.georgetown.edu/gelpi/
research_archive/nepa/NEPATask
Force_FinalRecommendations.pdf (last accessed June 25, 2012).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \36\Steve Pociask & Joseph P. Fuhr, Jr., Progress Denied: A Study 
on the Potential Economic Impact of Permitting Challenges Facing 
Proposed Energy Projects (Mar. 11, 2011), available at http://
www.uschamber.com/reports/progress-denied-study-potential-economic-
impact-permitting-challenges-facing-proposed-energy (last accessed June 
25, 2012).
    \37\RAPID Act Hearing, note 1 supra, at 39 (Testimony of William 
Kovacs).
---------------------------------------------------------------------------
    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 brought to resolution only by an Act of Congress 
forcing the Administration 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\
---------------------------------------------------------------------------
    \38\See H.R. 3765, Title V, Subtitle A.
    \39\See S. Amdt. 1537 to S. 1813 (Mar. 8, 2012).
    \40\See ``Remarks by the President on American-Made Energy,'' Mar. 
22, 2012, available at http://www.whitehouse.gov/the-press-office/2012/
03/22/remarks-president-american-made-energy (last accessed June 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.'').
    \41\Dan Frosch, ``New Application Is Submitted for Keystone 
Pipeline,'' New York Times (May 4, 2012), available at http://
www.nytimes.com/2012/05/05/us/transcanada-submits-new-application-for-
keystone-project.html (last accessed June 25, 2012).
    \42\See http://www.keystonepipeline-xl.state.gov/(last accessed 
June 25, 2012).
    \43\See http://energycommerce.house.gov/keystonexl.shtml (last 
accessed June 25, 2012).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \44\Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1034 
(9th Cir. 2012).
    \45\Id. at 1028.
    \46\Id.

        Although it is apparent to us that the `new' plaintiffs 
        and their counsel have grossly abused the judicial 
        process by strategically holding back claims that could 
        have, and should have, been asserted in the first 
        lawsuit (and would have been decided earlier but for 
        counsel's procedural errors in raising those claims), 
        we are compelled to hold that laches does not apply 
        here because the USFS and ASRLP cannot demonstrate that 
        they suffered prejudice, as defined by our case 
        law.\47\
---------------------------------------------------------------------------
    \47\Id.
---------------------------------------------------------------------------
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. SAFETEA-LU also 
established a 180-day statute of limitations to challenge a 
final agency action (e.g., permitting decision) related to the 
environmental review.\49\ A bipartisan bill co-sponsored by 
numerous Democrats, SAFETEA-LU passed the House 412 to 8. The 
Federal Highway Administration found Section 6002 has reduced 
the average NEPA review time almost by half, from 73 months to 
36.85 months.\50\ ``The RAPID Act is very wisely modeled 
after'' Section 6002.\51\
---------------------------------------------------------------------------
    \48\RAPID Act Hearing, note 1 supra, at 56 (Testimony of William 
Kovacs).
    \49\See 23 U.S.C. Sec. 139(l).
    \50\Office of Project Development & Environmental Review, Federal 
Highway Administration, U.S. Department of Transportation, ``Biannual 
Assessment of SAFETEA-LU Section 6002 Implementation Effectiveness,'' 
at 9 (Sept. 2010).
    \51\RAPID Act Hearing, note 1 supra, at 55 (Testimony of William 
Kovacs).
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \52\109 P.L. 58, Sec. 368.
    \53\Id. Sec. 369.
    \54\Id. Sec. 372.
    \55\Ibid.
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \56\See 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.
---------------------------------------------------------------------------
            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:
---------------------------------------------------------------------------
    \62\``How We're Meeting the Job Creation Challenge,'' Wall Street 
Journal, June 13, 2011.

---------------------------------------------------------------------------
         LData collection and transparency;

         LEarly stakeholder engagement;

         LCentralized monitoring and accountability for 
        Federal agency performance;

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

         LImprove litigation management.\63\
---------------------------------------------------------------------------
    \63\``Simply Regulatory Review and Streamline Project Approvals,'' 
Jobs Council Recommendations, available at http://files.jobs-
council.com/files/2011/10/JobsCouncil_
Regulatory.pdf (last accessed June 25, 2012).

    The Jobs Council reiterated these suggestions in its 
October 2011 Interim Report, explaining that ``[t]he thrust is 
to give stakeholders visibility into the process, deliver 
timely reviews and avoid duplicative analysis and 
requirements.''\64\ The Jobs Council's year-end report also 
mentioned the importance of permit streamlining.\65\
---------------------------------------------------------------------------
    \64\Available at http://files.jobs-council.com/jobscouncil/files/
2011/10/JobsCouncil_Interim
Report_Oct11.pdf, p. 27 (last accessed June 25, 2012).
    \65\Available at http://files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport
Web.pdf, pp. 42-44 (last accessed June 25, 2012).
---------------------------------------------------------------------------
            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 common-sense 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:
---------------------------------------------------------------------------
    \66\Press Release, ``White House Announces Steps to Expedite High 
Impact Infrastructure Projects to Create Jobs,'' Aug. 31, 2011, 
available at http://www.whitehouse.gov/the-press-office/2011/08/31/
white-house-announces-steps-expedite-high-impact-infrastructure-
projects (last accessed June 25, 2012).
    \67\Id.
    \68\Press Release, ``Obama Administration Announces Selection of 14 
Infrastructure Projects to be Expedited Through Permitting and 
Environmental Review Process,'' Oct. 11, 2011, available at http://
www.whitehouse.gov/the-press-office/2011/10/11/obama-administration-
announces-selection-14-infrastructure-projects-be-e (last accessed June 
25, 2012).
    \69\See 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).

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

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

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

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

    The Federal Plan 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.
---------------------------------------------------------------------------
    \71\See http://permits.performance.gov/sites/default/files/
Federal_Infrastructure_Plan.pdf (last accessed June 25, 2012).
---------------------------------------------------------------------------
    Relatedly, on March 6, 2012, the CEQ issued a memorandum to 
Federal agencies and departments regarding ``Improving the 
Process for Preparing Efficient and Timely Environmental 
Reviews under [NEPA].'' This guidance was issued to ``emphasize 
and clarify'' the opportunities for agencies to ``meet the 
goal'' of conducting ``high quality, efficient and timely 
environmental reviews'' under NEPA that are ``fully consistent 
with a thorough and meaningful environmental review.'' The 
memorandum encouraged agencies to follow numerous practices 
that would be required by the Bill, such as the need for EISs 
and EAs to be concise and clear; the importance of early and 
effective scoping and of inter-agency and inter-governmental 
coordination, including conducting concurrent reviews; 
adopting, when appropriate, existing environmental study 
documents; and, the importance of establishing clear timelines 
and deadlines. ``In many ways, the RAPID Act is a codification 
of principles set forth in CEQ's March 2012 guidance on NEPA 
efficiency.''\72\ Environmental review already has been 
completed, permits have been issued, and construction has begun 
on several of these projects.\73\
---------------------------------------------------------------------------
    \72\RAPID Act Hearing, note 1 supra, at 57 (Testimony of William 
Kovacs).
    \73\See http://permits.performance.gov/news-and-updates (last 
accessed June 25, 2012).
---------------------------------------------------------------------------

                  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 Act ``would restore to NEPA a more 
rational and manageable process without undercutting the law's 
environmental review elements.''\75\
---------------------------------------------------------------------------
    \74\Id. at 42-60.
    \75\Id. at 61.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \76\Id. at 67.
    \77\Id. at 68.
    \78\Id. at 197.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'').
    \80\See, 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.
---------------------------------------------------------------------------

                                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.).

                        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
Mr. Pierluisi................................       X
Mr. Quigley..................................
Ms. Chu......................................
Mr. Deutch...................................       X
Ms. Sanchez..................................       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
Ms. Waters...................................
Mr. Cohen....................................       X
Mr. Johnson, Jr..............................       X
Mr. Pierluisi................................       X
Mr. Quigley..................................       X
Ms. Chu......................................
Mr. Deutch...................................       X
Ms. Sanchez..................................       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..................................
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. Sanchez..................................       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...................................
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. Sanchez..................................       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...................................
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. Sanchez..................................
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...................................
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. Sanchez..................................
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.''
    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 construction projects can proceed, 
then a NEPA review may also be required.
    The bill's major provisions would:

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

         LRequire 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;

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

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

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

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

       COSTS FOR FEDERAL AGENCIES TO IMPLEMENT EXPEDITED REVIEWS

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

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

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

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

    The NEPA review process may also be required when private 
entities need to obtain a Federal permit to construct a 
project. Federal agencies that have a major role in regulating 
and overseeing the permit process for such projects include: 
the Federal Energy Regulatory Commission, the Nuclear 
Regulatory Commission, the Corps, the Bureau of Land 
Management, and the Forest Service.
    This legislation would codify many existing practices in 
use by DOT and other agencies when conducting 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 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.

                      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\
---------------------------------------------------------------------------
    \81\RAPID 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.'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \82\See, 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.'').
---------------------------------------------------------------------------
    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 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 
documents within 30 days;\84\ extensions on these deadlines are 
allowed by agreement among the lead agency, all participating 
agencies, and the project sponsor, or for good cause in the 
lead agency's judgment.
---------------------------------------------------------------------------
    \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. 
Sec. 1506.10.
---------------------------------------------------------------------------
    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.
    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

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

    (a) Congressional Declaration of Purpose.--The purpose of 
this subchapter is to establish a framework and procedures to 
streamline, increase the efficiency of, and enhance 
coordination of agency administration of the regulatory review, 
environmental decisionmaking, and permitting process for 
projects undertaken, reviewed, or funded by Federal agencies. 
This subchapter will ensure that agencies administer the 
regulatory process in a manner that is efficient so that 
citizens are not burdened with regulatory excuses and time 
delays.
    (b) Definitions.--For purposes of this subchapter, the 
term--
            (1) ``agency'' means any agency, department, or 
        other unit of Federal, State, local, or Indian tribal 
        government;
            (2) ``category of projects'' means 2 or more 
        projects related by project type, potential 
        environmental impacts, geographic location, or another 
        similar project feature or characteristic;
            (3) ``environmental assessment'' means a concise 
        public document for which a Federal agency is 
        responsible that serves to--
                    (A) briefly provide sufficient evidence and 
                analysis for determining whether to prepare an 
                environmental impact statement or a finding of 
                no significant impact;
                    (B) aid an agency's compliance with NEPA 
                when no environmental impact statement is 
                necessary; and
                    (C) facilitate preparation of an 
                environmental impact statement when one is 
                necessary;
            (4) ``environmental impact statement'' means the 
        detailed statement of significant environmental impacts 
        required to be prepared under NEPA;
            (5) ``environmental review'' means the Federal 
        agency procedures for preparing an environmental impact 
        statement, environmental assessment, categorical 
        exclusion, or other document under NEPA;
            (6) ``environmental decisionmaking process'' means 
        the Federal agency procedures for undertaking and 
        completion of any environmental permit, decision, 
        approval, review, or study under any Federal law other 
        than NEPA for a project subject to an environmental 
        review;
            (7) ``environmental document'' means an 
        environmental assessment or environmental impact 
        statement, and includes any supplemental document or 
        document prepared pursuant to a court order;
            (8) ``finding of no significant impact'' means a 
        document by a Federal agency briefly presenting the 
        reasons why a project, not otherwise subject to a 
        categorical exclusion, will not have a significant 
        effect on the human environment and for which an 
        environmental impact statement therefore will not be 
        prepared;
            (9) ``lead agency'' means the Federal agency 
        preparing or responsible for preparing the 
        environmental document;
            (10) ``NEPA'' means the National Environmental 
        Policy Act of 1969 (42 U.S.C. 4321 et seq.);
            (11) ``project'' means major Federal actions that 
        are construction activities undertaken with Federal 
        funds or that are construction activities that require 
        approval by a permit or regulatory decision issued by a 
        Federal agency;
            (12) ``project sponsor'' means the agency or other 
        entity, including any private or public-private entity, 
        that seeks approval for a project or is otherwise 
        responsible for undertaking a project; and
            (13) ``record of decision'' means a document 
        prepared by a lead agency under NEPA following an 
        environmental impact statement that states the lead 
        agency's decision, identifies the alternatives 
        considered by the agency in reaching its decision and 
        states whether all practicable means to avoid or 
        minimize environmental harm from the alternative 
        selected have been adopted, and if not, why they were 
        not adopted.
    (c) Preparation of Environmental Documents.--Upon the 
request of the lead agency, the project sponsor shall be 
authorized to prepare any document for purposes of an 
environmental review required in support of any project or 
approval by the lead agency if the lead agency furnishes 
oversight in such preparation and independently evaluates such 
document and the document is approved and adopted by the lead 
agency prior to taking any action or making any approval based 
on such document.
    (d) Adoption and Use of Documents.--
            (1) Documents prepared under nepa.--
                    (A) Not more than 1 environmental impact 
                statement and 1 environmental assessment shall 
                be prepared under NEPA for a project (except 
                for supplemental environmental documents 
                prepared under NEPA or environmental documents 
                prepared pursuant to a court order), and, 
                except as otherwise provided by law, the lead 
                agency shall prepare the environmental impact 
                statement or environmental assessment. After 
                the lead agency issues a record of decision, no 
                Federal agency responsible for making any 
                approval for that project may rely on a 
                document other than the environmental document 
                prepared by the lead agency.
                    (B) Upon the request of a project sponsor, 
                a lead agency may adopt, use, or rely upon 
                secondary and cumulative impact analyses 
                included in any environmental document prepared 
                under NEPA for projects in the same geographic 
                area where the secondary and cumulative impact 
                analyses provide information and data that 
                pertains to the NEPA decision for the project 
                under review.
            (2) State environmental documents; supplemental 
        documents.--
                    (A) Upon the request of a project sponsor, 
                a lead agency may adopt a document that has 
                been prepared for a project under State laws 
                and procedures as the environmental impact 
                statement or environmental assessment for the 
                project, provided that the State laws and 
                procedures under which the document was 
                prepared provide environmental protection and 
                opportunities for public involvement that are 
                substantially equivalent to NEPA.
                    (B) An environmental document adopted under 
                subparagraph (A) is deemed to satisfy the lead 
                agency's obligation under NEPA to prepare an 
                environmental impact statement or environmental 
                assessment.
                    (C) In the case of a document described in 
                subparagraph (A), during the period after 
                preparation of the document but before its 
                adoption by the lead agency, the lead agency 
                shall prepare and publish a supplement to that 
                document if the lead agency determines that--
                            (i) a significant change has been 
                        made to the project that is relevant 
                        for purposes of environmental review of 
                        the project; or
                            (ii) there have been significant 
                        changes in circumstances or 
                        availability of information relevant to 
                        the environmental review for the 
                        project.
                    (D) If the agency prepares and publishes a 
                supplemental document under subparagraph (C), 
                the lead agency may solicit comments from 
                agencies and the public on the supplemental 
                document for a period of not more than 45 days 
                beginning on the date of the publication of the 
                supplement.
                    (E) A lead agency shall issue its record of 
                decision or finding of no significant impact, 
                as appropriate, based upon the document adopted 
                under subparagraph (A), and any supplements 
                thereto.
            (3) Contemporaneous projects.--If the lead agency 
        determines that there is a reasonable likelihood that 
        the project will have similar environmental impacts as 
        a similar project in geographical proximity to the 
        project, and that similar project was subject to 
        environmental review or similar State procedures within 
        the 5 year period immediately preceding the date that 
        the lead agency makes that determination, the lead 
        agency may adopt the environmental document that 
        resulted from that environmental review or similar 
        State procedure. The lead agency may adopt such an 
        environmental document, if it is prepared under State 
        laws and procedures only upon making a favorable 
        determination on such environmental document pursuant 
        to paragraph (2)(A).
    (e) Participating Agencies.--
            (1) In general.--The lead agency shall be 
        responsible for inviting and designating participating 
        agencies in accordance with this subsection. The lead 
        agency shall provide the invitation or notice of the 
        designation in writing.
            (2) Federal participating agencies.--Any Federal 
        agency that is required to adopt the environmental 
        document of the lead agency for a project shall be 
        designated as a participating agency and shall 
        collaborate on the preparation of the environmental 
        document, unless the Federal agency informs the lead 
        agency, in writing, by a time specified by the lead 
        agency in the designation of the Federal agency that 
        the Federal agency--
                    (A) has no jurisdiction or authority with 
                respect to the project;
                    (B) has no expertise or information 
                relevant to the project; and
                    (C) does not intend to submit comments on 
                the project.
            (3) Invitation.--The lead agency shall identify, as 
        early as practicable in the environmental review for a 
        project, any agencies other than an agency described in 
        paragraph (2) that may have an interest in the project, 
        including, where appropriate, Governors of affected 
        States, and heads of appropriate tribal and local 
        (including county) governments, and shall invite such 
        identified agencies and officials to become 
        participating agencies in the environmental review for 
        the project. The invitation shall set a deadline of 30 
        days for responses to be submitted, which may only be 
        extended by the lead agency for good cause shown. Any 
        agency that fails to respond prior to the deadline 
        shall be deemed to have declined the invitation.
            (4) Effect of declining participating agency 
        invitation.--Any agency that declines a designation or 
        invitation by the lead agency to be a participating 
        agency shall be precluded from submitting comments on 
        any document prepared under NEPA for that project or 
        taking any measures to oppose, based on the 
        environmental review, any permit, license, or approval 
        related to that project.
            (5) Effect of designation.--Designation as a 
        participating agency under this subsection does not 
        imply that the participating agency--
                    (A) supports a proposed project; or
                    (B) has any jurisdiction over, or special 
                expertise with respect to evaluation of, the 
                project.
            (6) Cooperating agency.--A participating agency may 
        also be designated by a lead agency as a ``cooperating 
        agency'' under the regulations contained in part 1500 
        of title 40, Code of Federal Regulations, as in effect 
        on January 1, 2011. Designation as a cooperating agency 
        shall have no effect on designation as participating 
        agency. No agency that is not a participating agency 
        may be designated as a cooperating agency.
            (7) Concurrent reviews.--Each Federal agency 
        shall--
                    (A) carry out obligations of the Federal 
                agency under other applicable law concurrently 
                and in conjunction with the review required 
                under NEPA; and
                    (B) in accordance with the rules made by 
                the Council on Environmental Quality pursuant 
                to subsection (n)(1), make and carry out such 
                rules, policies, and procedures as may be 
                reasonably necessary to enable the agency to 
                ensure completion of the environmental review 
                and environmental decisionmaking process in a 
                timely, coordinated, and environmentally 
                responsible manner.
            (8) Comments.--Each participating agency shall 
        limit its comments on a project to areas that are 
        within the authority and expertise of such 
        participating agency. Each participating agency shall 
        identify in such comments the statutory authority of 
        the participating agency pertaining to the subject 
        matter of its comments. The lead agency shall not act 
        upon, respond to or include in any document prepared 
        under NEPA, any comment submitted by a participating 
        agency that concerns matters that are outside of the 
        authority and expertise of the commenting participating 
        agency.
    (f) Project Initiation Request.--
            (1) Notice.--A project sponsor shall provide the 
        Federal agency responsible for undertaking a project 
        with notice of the initiation of the project by 
        providing a description of the proposed project, the 
        general location of the proposed project, and a 
        statement of any Federal approvals anticipated to be 
        necessary for the proposed project, for the purpose of 
        informing the Federal agency that the environmental 
        review should be initiated.
            (2) Lead agency initiation.--The agency receiving a 
        project initiation notice under paragraph (1) shall 
        promptly identify the lead agency for the project, and 
        the lead agency shall initiate the environmental review 
        within a period of 45 days after receiving the notice 
        required by paragraph (1) by inviting or designating 
        agencies to become participating agencies, or, where 
        the lead agency determines that no participating 
        agencies are required for the project, by taking such 
        other actions that are reasonable and necessary to 
        initiate the environmental review.
    (g) Alternatives Analysis.--
            (1) Participation.--As early as practicable during 
        the environmental review, but no later than during 
        scoping for a project requiring the preparation of an 
        environmental impact statement, the lead agency shall 
        provide an opportunity for involvement by cooperating 
        agencies in determining the range of alternatives to be 
        considered for a project.
            (2) Range of alternatives.--Following participation 
        under paragraph (1), the lead agency shall determine 
        the range of alternatives for consideration in any 
        document which the lead agency is responsible for 
        preparing for the project, subject to the following 
        limitations:
                    (A) No evaluation of certain 
                alternatives.--No Federal agency shall evaluate 
                any alternative that was identified but not 
                carried forward for detailed evaluation in an 
                environmental document or evaluated and not 
                selected in any environmental document prepared 
                under NEPA for the same project.
                    (B) Only feasible alternatives evaluated.--
                Where a project is being constructed, managed, 
                funded, or undertaken by a project sponsor that 
                is not a Federal agency, Federal agencies shall 
                only be required to evaluate alternatives that 
                the project sponsor could feasibly undertake, 
                consistent with the purpose of and the need for 
                the project, including alternatives that can be 
                undertaken by the project sponsor and that are 
                technically and economically feasible.
            (3) Methodologies.--
                    (A) In general.--The lead agency shall 
                determine, in collaboration with cooperating 
                agencies at appropriate times during the 
                environmental review, the methodologies to be 
                used and the level of detail required in the 
                analysis of each alternative for a project. The 
                lead agency shall include in the environmental 
                document a description of the methodologies 
                used and how the methodologies were selected.
                    (B) No evaluation of inappropriate 
                alternatives.--When a lead agency determines 
                that an alternative does not meet the purpose 
                and need for a project, that alternative is not 
                required to be evaluated in detail in an 
                environmental document.
            (4) Preferred alternative.--At the discretion of 
        the lead agency, the preferred alternative for a 
        project, after being identified, may be developed to a 
        higher level of detail than other alternatives in order 
        to facilitate the development of mitigation measures or 
        concurrent compliance with other applicable laws if the 
        lead agency determines that the development of such 
        higher level of detail will not prevent the lead agency 
        from making an impartial decision as to whether to 
        accept another alternative which is being considered in 
        the environmental review.
            (5) Employment analysis.--The evaluation of each 
        alternative in an environmental impact statement or an 
        environmental assessment shall identify the potential 
        effects of the alternative on employment, including 
        potential short-term and long-term employment increases 
        and reductions and shifts in employment.
    (h) Coordination and Scheduling.--
            (1) Coordination plan.--
                    (A) In general.--The lead agency shall 
                establish and implement a plan for coordinating 
                public and agency participation in and comment 
                on the environmental review for a project or 
                category of projects to facilitate the 
                expeditious resolution of the environmental 
                review.
                    (B) Schedule.--
                            (i) In general.--The lead agency 
                        shall establish as part of the 
                        coordination plan for a project, after 
                        consultation with each participating 
                        agency and, where applicable, the 
                        project sponsor, a schedule for 
                        completion of the environmental review. 
                        The schedule shall include deadlines, 
                        consistent with subsection (i), for 
                        decisions under any other Federal laws 
                        (including the issuance or denial of a 
                        permit or license) relating to the 
                        project that is covered by the 
                        schedule.
                            (ii) Factors for consideration.--In 
                        establishing the schedule, the lead 
                        agency shall consider factors such as--
                                    (I) the responsibilities of 
                                participating agencies under 
                                applicable laws;
                                    (II) resources available to 
                                the participating agencies;
                                    (III) overall size and 
                                complexity of the project;
                                    (IV) overall schedule for 
                                and cost of the project;
                                    (V) the sensitivity of the 
                                natural and historic resources 
                                that could be affected by the 
                                project; and
                                    (VI) the extent to which 
                                similar projects in geographic 
                                proximity were recently subject 
                                to environmental review or 
                                similar State procedures.
                            (iii) Compliance with the 
                        schedule.--
                                    (I) All participating 
                                agencies shall comply with the 
                                time periods established in the 
                                schedule or with any modified 
                                time periods, where the lead 
                                agency modifies the schedule 
                                pursuant to subparagraph (D).
                                    (II) The lead agency shall 
                                disregard and shall not respond 
                                to or include in any document 
                                prepared under NEPA, any 
                                comment or information 
                                submitted or any finding made 
                                by a participating agency that 
                                is outside of the time period 
                                established in the schedule or 
                                modification pursuant to 
                                subparagraph (D) for that 
                                agency's comment, submission or 
                                finding.
                                    (III) If a participating 
                                agency fails to object in 
                                writing to a lead agency 
                                decision, finding or request 
                                for concurrence within the time 
                                period established under law or 
                                by the lead agency, the agency 
                                shall be deemed to have 
                                concurred in the decision, 
                                finding or request.
                    (C) Consistency with other time periods.--A 
                schedule under subparagraph (B) shall be 
                consistent with any other relevant time periods 
                established under Federal law.
                    (D) Modification.--The lead agency may--
                            (i) lengthen a schedule established 
                        under subparagraph (B) for good cause; 
                        and
                            (ii) shorten a schedule only with 
                        the concurrence of the cooperating 
                        agencies.
                    (E) Dissemination.--A copy of a schedule 
                under subparagraph (B), and of any 
                modifications to the schedule, shall be--
                            (i) provided within 15 days of 
                        completion or modification of such 
                        schedule to all participating agencies 
                        and to the project sponsor; and
                            (ii) made available to the public.
                    (F) Roles and responsibility of lead 
                agency.--With respect to the environmental 
                review for any project, the lead agency shall 
                have authority and responsibility to take such 
                actions as are necessary and proper, within the 
                authority of the lead agency, to facilitate the 
                expeditious resolution of the environmental 
                review for the project.
    (i) Deadlines.--The following deadlines shall apply to any 
project subject to review under NEPA and any decision under any 
Federal law relating to such project (including the issuance or 
denial of a permit or license or any required finding):
            (1) Environmental review deadlines.--The lead 
        agency shall complete the environmental review within 
        the following deadlines:
                    (A) Environmental impact statement 
                projects.--For projects requiring preparation 
                of an environmental impact statement--
                            (i) the lead agency shall issue an 
                        environmental impact statement within 2 
                        years after the earlier of the date the 
                        lead agency receives the project 
                        initiation request or a Notice of 
                        Intent to Prepare an Environmental 
                        Impact Statement is published in the 
                        Federal Register; and
                            (ii) in circumstances where the 
                        lead agency has prepared an 
                        environmental assessment and determined 
                        that an environmental impact statement 
                        will be required, the lead agency shall 
                        issue the environmental impact 
                        statement within 2 years after the date 
                        of publication of the Notice of Intent 
                        to Prepare an Environmental Impact 
                        Statement in the Federal Register.
                    (B) Environmental assessment projects.--For 
                projects requiring preparation of an 
                environmental assessment, the lead agency shall 
                issue a finding of no significant impact or 
                publish a Notice of Intent to Prepare an 
                Environmental Impact Statement in the Federal 
                Register within 1 year after the earlier of the 
                date the lead agency receives the project 
                initiation request, makes a decision to prepare 
                an environmental assessment, or sends out 
                participating agency invitations.
            (2) Extensions.--
                    (A) Requirements.--The environmental review 
                deadlines may be extended only if--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
                    (B) Limitation.--The environmental review 
                shall not be extended by more than 1 year for a 
                project requiring preparation of an 
                environmental impact statement or by more than 
                180 days for a project requiring preparation of 
                an environmental assessment.
            (3) Environmental review comments.--
                    (A) Comments on draft environmental impact 
                statement.--For comments by agencies and the 
                public on a draft environmental impact 
                statement, the lead agency shall establish a 
                comment period of not more than 60 days after 
                publication in the Federal Register of notice 
                of the date of public availability of such 
                document, unless--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
                    (B) Other comments.--For all other comment 
                periods for agency or public comments in the 
                environmental review process, the lead agency 
                shall establish a comment period of no more 
                than 30 days from availability of the materials 
                on which comment is requested, unless--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
            (4) Deadlines for decisions under other laws.--
        Notwithstanding any other provision of law, in any case 
        in which a decision under any other Federal law 
        relating to the undertaking of a project being reviewed 
        under NEPA (including the issuance or denial of a 
        permit or license) is required to be made, the 
        following deadlines shall apply:
                    (A) Decisions prior to record of decision 
                or finding of no significant impact.--If a 
                Federal agency is required to approve, or 
                otherwise to act upon, a permit, license, or 
                other similar application for approval related 
                to a project prior to the record of decision or 
                finding of no significant impact, such Federal 
                agency shall approve or otherwise act not later 
                than the end of a 90 day period beginning--
                            (i) after all other relevant agency 
                        review related to the project is 
                        complete; and
                            (ii) after the lead agency 
                        publishes a notice of the availability 
                        of the final environmental impact 
                        statement or issuance of other final 
                        environmental documents, or no later 
                        than such other date that is otherwise 
                        required by law, whichever event occurs 
                        first.
                    (B) Other decisions.--With regard to any 
                approval or other action related to a project 
                by a Federal agency that is not subject to 
                subparagraph (A), each Federal agency shall 
                approve or otherwise act not later than the end 
                of a period of 180 days beginning--
                            (i) after all other relevant agency 
                        review related to the project is 
                        complete; and
                            (ii) after the lead agency issues 
                        the record of decision or finding of no 
                        significant impact, unless a different 
                        deadline is established by agreement of 
                        the Federal agency, lead agency, and 
                        the project sponsor, where applicable, 
                        or the deadline is extended by the 
                        Federal agency for good cause, provided 
                        that such extension shall not extend 
                        beyond a period that is 1 year after 
                        the lead agency issues the record of 
                        decision or finding of no significant 
                        impact.
                    (C) Failure to act.--In the event that any 
                Federal agency fails to approve, or otherwise 
                to act upon, a permit, license, or other 
                similar application for approval related to a 
                project within the applicable deadline 
                described in subparagraph (A) or (B), the 
                permit, license, or other similar application 
                shall be deemed approved by such agency and the 
                agency shall take action in accordance with 
                such 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 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 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\
---------------------------------------------------------------------------
    \1\42 U.S.C. Sec. Sec. 4321-4347 (2012).
    \2\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2012).
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    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 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\
---------------------------------------------------------------------------
    \3\Letter 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).
    \4\Letter from Nancy H. Sutley, Chair, Council on Environmental 
Quality, Executive Office of the President, to Rep. Howard Coble (R-
NC), Chair, and Rep. Steve Cohen (D-TN), Ranking Member, Subcomm. on 
Courts, Commercial and Administrative Law of the H. Comm. on the 
Judiciary (Apr. 24, 2012) (on file with Democratic staff of the H. 
Comm. on the Judiciary).
    \5\Id. at 1.
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    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 assessment 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.
    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 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 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 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 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 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 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.
---------------------------------------------------------------------------
    \6\33 U.S.C. Sec. Sec. 1344 et seq. (2012).
---------------------------------------------------------------------------
    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 Federal approval go through the NEPA process in a 
timely manner. Of the remaining projects that actually require 
a formal environmental review leading to an 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 short-circuit the existing environmental review 
processes under NEPA and its implementing regulations. As Dinah 
Bear, who served as the CEQ's General Counsel for 25 years 
during the Reagan, George H.W. Bush, Clinton, and George W. 
Bush administrations and who was intimately involved in the 
implementation of NEPA throughout the Executive Branch, 
observed, most delays in the environmental review processes are 
caused by factors other than NEPA or are justified by the 
nature of the project in question. Specifically, she noted:

        [T]he principal causes of unjustified delay in 
        implementing the NEPA review process are inadequate 
        agency resources, inadequate training, inadequate 
        leadership in implementing conflict dispute resolution 
        mechanisms (both internal and interagency), and lack of 
        coordination between Federal agencies and agencies at 
        the county, tribal and state level, including and in 
        particular coordinated, single environmental review 
        processes in cases where government agencies at other 
        levels have environmental review procedures. Causes of 
        justified delay include the complexity of proposed 
        projects and the associated impacts of them, changes in 
        the proposed project, the extent and nature of public 
        controversy, changes in budget and policy direction, 
        including Congressional oversight, and new 
        information.\7\
---------------------------------------------------------------------------
    \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).

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

        The time it takes to complete the NEPA process is often 
        the focus of debate over project delays attributable to 
        the overall environmental review stage. However, the 
        majority of [Federal Highway Administration]-approved 
        projects required limited documentation or analyses 
        under NEPA. Further, when environmental requirements 
        have caused project delays, requirements established 
        under laws other than NEPA have generally been the 
        source. This calls into question the degree to which 
        the NEPA compliance process is a significant source of 
        delay in completing either the environmental review 
        process or overall project delivery. Causes of delay 
        that have been identified are more often tied to local/
        state and project-specific factors, primarily local/
        state agency priorities, project funding levels, local 
        opposition to a project, project complexity, or late 
        changes in project scope. Further, approaches that have 
        been found to expedite environmental reviews involve 
        procedures that local and state transportation agencies 
        may implement currently, such as efficient coordination 
        of interagency involvement; early and continued 
        involvement with stakeholders interested in the 
        project; and identifying environmental issues and 
        requirements early in project development.\8\
---------------------------------------------------------------------------
    \8\Linda Luther, The Role of the Environmental Review Process in 
Federally Funded Highway Projects: Background and Issues for Congress, 
Congressional Research Service Report for Congress, R42479, Apr. 11, 
2012, at unnumbered summary page.

In light of the foregoing, 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 re-licensing 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 alternatives 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 considering 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\
---------------------------------------------------------------------------
    \9\40 C.F.R. Sec. 1502.14 (2012).
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                               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.

                                  

```