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73–964 PDF 2012

RESPONSIBLY AND PROFESSIONALLY 

INVIGORATING DEVELOPMENT 

(RAPID) ACT OF 2012 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.R. 4377 

APRIL 25, 2012 

Serial No. 112–99 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

BEN QUAYLE, Arizona 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

JARED POLIS, Colorado 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 25, 2012 

Page 

THE BILL 

H.R. 4377, the ‘‘Responsibly And Professionally Invigorating Development 

(RAPID) Act of 2012’’ ........................................................................................... 4 

OPENING STATEMENTS 

The Honorable Dennis Ross, a Representative in Congress from the State 

of Florida, and acting Chairman, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 37 

WITNESSES 

William L. Kovacs, Senior Vice President, Environment, Technology and Regulatory Affairs, U.S. Chamber of Commerce 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 41 

Gus Bauman, Esq., Beveridge & Diamond, P.C. 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

Thomas Margro, CEO, Transportation Corridor Agencies 

Oral Testimony ..................................................................................................... 67 

Prepared Statement ............................................................................................. 69 

Dinah Bear, Esq., former General Counsel, Council on Environmental Quality 

Oral Testimony ..................................................................................................... 77 

Prepared Statement ............................................................................................. 79 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 96 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 103 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 104 

Attachment to the Prepared Statement of Thomas Margro, CEO, Transportation Corridor Agencies ...................................................................................... 106 

Letter from Organizations Opposed to the Legislation ........................................ 179 

Response to Post-Hearing Questions from William L. Kovacs, Senior Vice 

President, Environment, Technology and Regulatory Affairs, U.S. Chamber 

of Commerce ......................................................................................................... 182 

Page

IV 

Post-Hearing Questions submitted to Gus Bauman, Esq., Beveridge & Diamond, P.C., and Related E-mail Correspondence .............................................. 185 

Response to Post-Hearing Questions from Dinah Bear, Esq., former General 

Counsel, Council on Environmental Quality ..................................................... 187 

Response to Post-Hearing Questions from Thomas Margro, CEO, Transportation Corridor Agencies ...................................................................................... 197 

(1) 

RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT (RAPID) ACT OF 

2012 

WEDNESDAY, APRIL 25, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 12:10 p.m., in room 

2141, Rayburn House Office Building, the Honorable Dennis A. 

Ross (acting Chairman of the Subcommittee) presiding. 

Present: Representatives Ross, Cohen, and Polis. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; John Hilton, Counsel; Travis Norton, Counsel; Omar 

Raschid, Professional Staff Member; Ashley Lewis, Clerk; (Minority) James Park, Subcommittee Chief Counsel; Susan JensenLachmann, Counsel; and Rosalind Jackson, Professional Staff 

Member. 

Mr. ROSS. Good afternoon. I now call the Subcommittee on 

Courts, Commercial and Administrative Law to order. Just to give 

you a quick preface, I am going to go into my opening statement 

and introduce the panel. We are still waiting for one more Member. 

So I appreciate your indulgence and respect your schedules as well. 

Hopefully we will be ready for your testimony very shortly. 

With that, I will begin with my opening statement. Our economic 

recovery has been weak, to say the least. The unemployment rate 

hasn’t been below 8 percent since January 2009, despite the President’s assurance that it wouldn’t rise above 8 percent if Congress 

would pass the $787 billion spending package. More than just losing a paycheck, millions of Americans have lost the dignity that 

comes from earning a living and supporting a family. No government benefit can compensate a person for that. Americans are 

ready to go to work. 

More than any other question, what I consistently hear from my 

constituency is, ‘‘Where are the jobs?’’ The jobs are here, as our witnesses today will explain. A study of proposed projects in just one 

sector of the economy—the energy sector—found that if a modest 

number of these projects were allowed to go forward and break 

ground, the direct and indirect economic benefits would be tremendous: literally, hundreds of thousands of jobs and billions of dollars 

annually. 

2 

Another of our witnesses describes the transportation project in 

Orange County, California, that has been under review for 15 

years. If approved, it would create 13,600 jobs in Orange County 

and another 3,800 statewide. Imagine, waiting 15 years to build a 

16-mile highway in one of the most congested traffic areas of the 

country. And that road is still not built. If the workers are here 

and the jobs are here, then what is keeping the American workers 

idle? An outdated, burdensome Federal permitting process that has 

become more focused on analysis and process for its own sake than 

on making decisions in a reasonable period of time. 

The National Environmental Policy Act of 1969 serves important 

goals which should be preserved. Federal agencies ought to know 

how their actions affect the environment and this decision-making 

process should be transparent to the public. But today’s opaque, 

unpredictable, nearly interminable environmental review process 

does not even remotely resemble the commonsense one envisioned 

by the authors of NEPA. As often happens with government, over 

the years the machinery has slowed as more and more steps have 

been added to the process, ad infinitum analysis with environmental reviews not uncommonly taking up to a decade or more to 

complete; the records of decision thousands of pages long, incomprehensible to anyone but a specialist; agencies working at crosspurposes rather than cooperatively; permit applications suddenly 

denied by an agency that had participated seemingly in good faith 

in the environmental review; lawsuits brought years later by ‘‘not 

in my backyard’’ activist organizations that have been eagerly waiting for an opportunity where an agency forgets to cross a T or dot 

an I. 

This paralysis costs job creators millions of dollars in fees to hire 

consultants and lawyers. But the real losers are the American 

workers who could be putting food on the table while contributing 

to the country’s economic progress. 

It his most recent State of the Union speech President Obama 

said, ‘‘We don’t have to choose between our environment and our 

economy.’’ I agree wholeheartedly. Far too often Americans are 

given a false hope between all of one thing or of another, with 

nothing in between. The key is balance. By striking the right balance between conservation and development we can preserve the 

environment for future generations and ensure that those generations are also able to enjoy the quality of life that we all too often 

seem to take for granted. 

My bill, the RAPID Act of 2012, aims to restore the balance between thorough analysis and timely decision-making in the Federal 

permitting process. It does not put a thumb on the scale or try to 

force agencies to approve more or fewer permit applications. It simply says: Make a decision, approve or deny the project. But either 

way, follow a rational basis and make a decision in a reasonable, 

predictable period of time. 

Job creators and workers alike deserve to know that a decision 

will be made by a date certain. When a project appears to be stuck 

in limbo, investors walk and jobs are lost. The RAPID Act does not 

bring many or even any really new ideas to the table. It simply 

makes the Federal environmental review and permitting process 

work like we all know it should. 

3 

The RAPID Act is modeled on existing NEPA regulations and 

guidance, including guidance from this Administration issued to 

agency heads just last month, as well as recommendations for the 

President’s own Jobs Council and the permit streamlining section 

of the transportation bill adopted by Congress in the 109th Congress. The Federal Highway Administration has found that this 

legislation cut the time for conducting environmental reviews on 

transportation projects nearly in half. 

Americans are ready to go back to work. The RAPID Act will 

give job creators the confidence to take projects off the drawing 

board and onto the work site. 

In closing, I want to thank my cosponsors, Chairman Smith, Mr. 

Coble, and Mr. Peterson for their support. Thank you especially to 

Mr. Coble for calling this hearing and giving me the opportunity 

to chair it. And thanks to our witnesses for attending and sharing 

their experience with us. 

I now reserve the balance of my time. With that, I would like to 

take a moment and introduce our panel of witnesses. 

And also for the record I would note that when Mr. Cohen arrives, I will give him 5 minutes for his opening statement as well. 

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Mr. ROSS. Our first witness that we have today is William 

Kovacs of the U.S. Chamber. Mr. Kovacs provides the overall direction, strategy, and management for the Environment, Technology, 

and Regulatory Affairs Division at the U.S. Chamber of Commerce. 

Since he joined the Chamber in March 1998, Mr. Kovacs has transformed a small division concentrated on a handful of issues in committee meetings into one of the most significant in the organization. His division initiates and leads multidimensional national 

issue campaigns on energy legislation, complex environmental 

rulemakings, telecommunications reform, emerging technologies, 

and applying sound science to the Federal regulatory process. Mr. 

Kovacs previously served as chief counsel and staff director for the 

House Subcommittee on transportation and commerce. He earned 

his J.D. from the Ohio State University College of Law and a bachelor of science degree from the University of Scranton, magna cum 

laude. Welcome, Mr. Kovacs. We thank you for being here. 

Gus Bauman. Mr. Bauman is an attorney at the law firm of 

Beveridge & Diamond where he focuses on land use and environmental issues, advising clients on such matters as comprehensive 

planning, project development, and natural resource regulation. He 

has been deeply involved in the Supreme Court lands use and wetland cases since 1980. In 2006 and 2007, Mr. Bauman chaired the 

joint development task force to reform the development of the region’s Metrorail stations. His writings have been cited by the Supreme Court in several cases and his leadership in the field including numerous articles and conferences on land use, housing, growth 

management, and environmental issues has gained him a national 

reputation in land use law and policy. He is a highly rated faculty 

member of the Annual Land Use Institute for the American Law 

Institute, American Bar Association. Mr. Bauman earned a B.A. 

from Clark University and a J.D. from Washington University. Mr. 

Bauman, thank you for joining us today. 

Mr. Thomas Margro joined the Transportation Corridor Agencies 

in Irvine, California, as CEO in July 2007. Mr. Margro has a bachelor of science degree in electrical engineering from Syracuse University and a master of science degree in electrical engineering, 

systems engineering and operations research from the University 

of Pennsylvania. Prior to being selected to head Orange County’s 

67-mile toll road system, Mr. Margro was the general manager for 

the Bay Area Rapid Transit district, or BART, in Oakland. He 

began his career at BART in 1990 as assistant general manager for 

development. Prior to joining BART, he held the positions of Assistant General Manager and chief engineer of the Southeastern Pennsylvania Transportation Authority in Philadelphia. He also served 

as an engineer and director of maintenance and engineering services for the New Jersey Turnpike Authority. We look forward to 

hearing from you, Mr. Margro. 

Are you a Phillies fan or an A’s fan? 

Mr. MARGRO. Phillies fan all the way. 

Mr. ROSS. Thank you. Our fourth witness is Dinah Bear, former 

general counsel on environmental quality. Dinah Bear is an attorney based in Washington, D.C. She served for 25 years as general 

counsel to the Council on Environmental Quality, which is the environmental agency in the Executive Office of the President. Ms. 

37 

Bear has chaired the American Bar Association standing committee 

on environmental law and the District of Columbia Bar Association 

section on environment and natural resources. She has received the 

distinguished service award from the Sierra Club and an award for 

distinguished achievement in environmental law and policy form 

the American Bar Association. She currently serves on the boards 

of Defenders of Wildlife, the Mount Graham Coalition, and Humane Borders. Ms. Bear has a bachelor’s of journalism from the 

University of Missouri and a J.D. from the McGeorge School of 

Law. Thank you for your testimony today, Ms. Bear. 

And with that, I think we are still going to wait for one more 

Member. Thank you. 

[Recess.] 

Mr. ROSS. I will call the Subcommittee back to order and recognize the distinguished gentleman from Tennessee, the Ranking 

Member of the Subcommittee, Mr. Cohen, for an opening. 

Mr. COHEN. Thank you, Mr. Chairman. And I apologize for holding things up. There was a memorial service for the late and great 

Donald Payne, a gentleman who cared about helping people all 

over the globe. It was important I think that we attend. 

H.R. 4377, the ‘‘Responsibly And Professionally Invigorating Development Act of 2012,’’ better known—or I hope for it to be better 

known as RAPID—creates a new subchapter of the Administrative 

Procedure Act to prescribe how the environmental reviews required 

by the National Environmental Policy Act, or NEPA, should be conducted for Federal construction projects. The bill also imposes 

deadlines for the granting of permits once the NEPA review process is completed. 

NEPA was signed into law by President Nixon. It went into effect on January 1, 1970. Among other things, NEPA requires that 

for proposals for legislation and other Federal actions significantly 

affecting the quality of the human environment, Federal agencies 

must prepare a detailed environmental review. NEPA also created 

the Council on Environmental Quality which issues regulations 

and guidance implementing NEPA. While NEPA itself is a short 

law, its regulations, which are 40 years of case law, that they define the details of how environmental reviews required by NEPA 

are carried out. H.R. 4377 appears to codify some of what is already in there in terms of how NEPA reviews are conducted. In 

other ways, however, this law appears to be a significant departure 

from current practice. 

I look forward to our witnesses discussing the subjects and merits of H.R. 4377. As the Ranking Member of the Subcommittee with 

jurisdiction over the APA, however, I do think it is important to 

raise one concern at the outset: It is unclear to me why all changes 

to our codifications of NEPA practice contemplated in this RAPID 

bill belong in the APA. If RAPID’s proponents would like to amend 

or add to NEPA’s environmental review requirements, they should 

simply go ahead and amend NEPA. I am very weary of using the 

APA as a backdoor way of amending other statutes or substance 

of law. And as I have said many times before, the APA is administrative constitution. And like the actual Constitution, we should be 

very careful in tinkering with it. 

38 

I am concerned H.R. 4377 as drafted opens the door to amending 

other statutes or substance of law by simply adding subchapters to 

the APA. This is not the purpose or function of the APA, and we 

ought to guard against that temptation. I look forward to your comments. 

I thank our witnesses for being here today. And in particular, I 

would like to acknowledge Gus Bauman, a lifelong friend, an accomplished lawyer since the days we knew each other as elementary school mates at Idlewild, a great school in Memphis Tennessee, and an expert on this subject who has done much law practice in this area. 

I would also like to acknowledge Dinah Bear who served for a 

quarter century as the general counsel for the Council on Environmental Quality and, therefore, knows NEPA and its associated regulations, case law, and guidance probably as well, if not better, 

than anybody else. So I thank you for appearing also. I welcome 

all of our witnesses and look forward to the testimony. 

Mr. ROSS. Thank you, Mr. Cohen. 

I now recognize Mr. Kovacs for opening testimony. Just for the 

record, please note that your written testimony has been submitted. And in the interest of time we would request that your 

opening statements be limited to 5 minutes. But we will be pretty 

lenient on that. 

Mr. Kovacs, you are recognized for 5 minutes. 

TESTIMONY OF WILLIAM L. KOVACS, SENIOR VICE PRESIDENT, ENVIRONMENT, TECHNOLOGY AND REGULATORY AFFAIRS, U.S. CHAMBER OF COMMERCE 

Mr. KOVACS. Thank you, Chairman Ross and Ranking Member 

Cohen. It is a pleasure to talk about the RAPID Act. It addresses 

the administrative backlogs that have been happening with environmental reviews through three commonsense ways. 

One is it requires the lead agency to actively manage the process 

so that we complete the environmental reviews in specified time 

frames. It mandates concurrent rather than sequential reviews, 

and it conforms the statute of limitation for bringing lawsuits 

under NEPA to the general Administrative Procedure Act criteria 

which is 6 months, rather than general statute of limitations under 

Federal law which is 6 years, which is one of the reasons the 

projects expand and go out so long. These very simple procedural 

changes will help our country create millions of jobs and get rid of 

excessive delay. 

Several years ago, the Chamber—when we were talking to our 

members and listening to the projects, we did a literature search 

to see if there was a study on how many projects were actually 

being stopped or delayed and for how long. And there is very little 

information. So we undertook a study called Project No Project, 

and we focused on electric generating facilities because it was easier to find the data that we needed. And we found as of March 2010, 

there were 351 electric generating and transmission projects 

around the country that were seeking permits but could not secure 

the permits. Most surprising, especially at the time when we were 

trying to create more green energy, was that 140 of the 351 

39 

projects were renewable projects, and only 111 were coal-fired 

power plants. 

So what we did is, we cataloged all the projects, put the projects 

on our Web site. And we did several things. One is, we tried to do 

an analysis of how these projects got stuck. And what we found is 

that the opponents of the projects brought a series of administrative and legal challenges against the projects which stretch out the 

projects through both sequential challenges as well as long statute 

of limitations. And in those instances, the projects either lost financing or the project sponsor abandoned the project. 

After cataloging the projects, we wanted to determine what was 

the economic impact of these 351 projects. We were able to do a 

study following traditional Department of Commerce methodology 

to find that if these projects had been built, there would have been 

direct investment in the 2010 time frame 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. 

So why does RAPID really take the initiative and streamline 

these projects in a way in which we think would be very successful? First of all, it adopts the proven environmental streamlining 

structure that the Congress has already adopted through 

SAFETEA-LU which was overwhelmingly approved by the Congress. And the studies out of the Department of Transportation 

show that the time for a NEPA review, based on the SAFETEALU factor, has been cut in half. It has been cut from 72 months 

to 36 months. 

Second, it tracks really the Administration’s efforts on March 4, 

2012, in their guidance document. But there is one big difference. 

The Administration is working very hard to try to get its hands 

around the permitting business too, and they have done several 

things, several Executive orders, a Presidential memorandum. But 

all of this as guidance puts us in a position in which it is not mandatory and it is not followed by the agencies. By the fact that your 

bill would actually put hard deadlines on, you begin to actually 

move the process forward so the agencies have to cooperate. It follows the recommendations of President Obama’s Council on Jobs 

and Competitiveness, which he issued both in its interim report 

and its final report very strong recommendations for permit 

streamlining. 

And finally and I think most importantly, it implements the 

original congressional intent. For this hearing, we did a very close 

examination of what happened in 1969. And one of the things you 

are going to find is the entire purpose of NEPA was not to have 

long delays. And in fact, when Congress was debating the issue, 

they were talking about time frames like 90 days. 

In 1981 CEQ thought that it could all be done in a year. Well 

today, with the latest study, the DeWitt study, they find that the 

average NEPA goes somewhere from a few months to 18 years, and 

it is increasing at the rate of about 37 days per year. And that is 

really the part of the process that we are trying to go after. So 

RAPID is a commonsense, proven solution that has actually been 

used in several other ways. 

40 

And since I have 20 seconds, similar permit streamlining was 

also used in the Stimulus Act, with the Boxer-Barrasso amendment. And out of the 194,000 projects that went through the stimulus project, over 184,000 of them went through the permit streamlining process. So it is a very important bill. Thank you very much 

for being able to testify. 

Mr. ROSS. Thank you Mr. Kovacs. And your timing was impeccable on that. 

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Mr. ROSS. Mr. Bauman, you are now recognized for 5 minutes for 

an opening. 

TESTIMONY OF GUS BAUMAN, ESQ., 

BEVERIDGE & DIAMOND, P.C. 

Mr. BAUMAN. Thank you Mr. Ross and Mr. Cohen, especially. 

The remarks that I offer today reflect my personal views and are 

not being made on behalf of and are not intended to reflect the 

views of Beveridge & Diamond or any other entity. 

The National Environmental Policy Act, NEPA, has been with us 

for 42 years. The Administrative Procedure Act, APA, has been 

with us for 66 years. NEPA is a procedural statute that requires 

Federal agencies to pause and take a hard look at the environmental consequences of their proposed actions. APA is a procedural 

statute that regulates the manner and process of Federal agencies 

in their rulemaking and decision-making. While both NEPA and 

APA are largely procedural in nature, their day-to-day workings 

have profound impacts not only on the Nation, but also on the 

rights of citizens as well as the authority of States and localities 

to perform their governmental functions. 

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. 

A 1994 GAO report found that NEPA review of a highway 

project, for example, took an average 4.4 years to complete. If an 

Army Corps section 404 permit was involved because of the presence of waters of the United States, then NEPA review took an average 5.6 years to complete. Since that GAO report, nothing has 

gotten any simpler. Indeed, a 2005 study of NEPA reviews of Oregon highway projects presented to the Transportation Research 

Board of the National Academy of Sciences by Dr. J. Dill of Portland State University, found it took an average 6.1 years to complete. Of course litigation, or just its threat, stretches the process 

much further, exacerbating the costs of delay for needed projects. 

According to the 2007 CRS Report for Congress, called Streamlining NEPA, in 2004, 170 NEPA cases were filed in court to stop 

a project. Just 6 percent of them resulted in an injunction. I am 

firmly convinced from professional experience, having worked in 

and out of government, that the Congress and President of 1969 

never intended that an environmental impact statement process— 

a statement, mind you—the more expansive terms ‘‘report’’ or 

‘‘study’’ were not even used—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. 

Key elements of this RAPID bill would restore to NEPA a more 

rational and manageable process without undercutting the law’s 

environmental review elements. Under the bill, the agencies participating in the review of a proposed construction project would 

have to work concurrently rather than, as is often the case, consecutively. They would have to follow an agreed-upon schedule with 

deadlines. If an agency chooses to file comments late in the agreedupon schedule when the decisions have been assessed, then 

62 

reached and relied upon, the lead agency shall not regard such late 

commentary. Additionally, an environmental impact statement 

shall be done within 2 years; an environmental assessment within 

1 year. Extensions of time are allowed for good cause. 

These basic reforms, taken together, would force all the agencies 

to hear each other out from the get-go, would deter an agency from 

holding back its views until late in the process, and would enforce 

a rigor of review and comment where too often little exists today. 

The streamlining bill also introduces the helpful concept that 

agencies put forward issues of concern as early as practicable so 

that they may be assessed and resolved; and once resolved, not reopened. And where resolution is not achieved, the lead agency shall 

notify the heads of the participating agencies as well as the Council 

on Environmental Quality. In that way, when reviews get bogged 

down and inordinately stretched out by lower-level agency people 

who sometimes refuse to see the forest for the trees, elevation of 

an issue can bring needed national or State perspective to the 

table. And requiring an annual report to the Congress on the workings of NEPA, including the status of litigation, is an excellent way 

to keep our elected representatives on top of the NEPA process. 

Finally, the streamlining bill takes the 180-day statute of limitations established in the Transportation Act of 2005, called 

SAFETEA-LU, and extends it to all NEPA claims seeking judicial 

review of an approved construction project. Now this makes eminent sense. No project sponsor, having endured the entire NEPA 

process with all that that entails, given the myriad statutory and 

regulatory requirements culminating in the final agency action, 

should have to wonder beyond 6 months of time if someone might 

appeal the project decision to court. Thank you. 

Mr. ROSS. Thank you Mr. Bauman. 

[The statement Mr. Bauman follows:] 

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Mr. ROSS. Mr. Margro, you are now recognized for 5 minutes. 

TESTIMONY OF THOMAS MARGRO, CEO, 

TRANSPORTATION CORRIDOR AGENCIES 

Mr. MARGRO. Thank you, Mr. Chairman and Congressman 

Cohen. My name is Tom Margro. I am the chief executive officer 

of the Transportation Corridor Agencies. We are two joint powers 

authorities formed by the California Legislature to plan, finance, 

construct and operate toll roads in Orange County, California. 

Thank you for the opportunity to speak before you today to discuss our agency’s ongoing challenges over more than 15 years to secure the Federal approvals needed to complete the 241 toll road. 

Not only is this project critical to alleviating congestion in Orange 

County, but it will create over 17,000 jobs and requires no Federal, 

State, or local funding. 

TCA recently retained the firm of Beacon Economics to do an 

economic benefits analysis of our project for the purposes of highlighting the importance of the project to the region and the State. 

The report found that designing and building this $1.7 billion 

project will create more than 13,600 jobs in Orange County alone, 

and an additional 3,800 jobs statewide. It will also generate more 

than $3 billion in economic output in California and create almost 

$160 million annually in local and State tax revenues. The recession has severely impacted our local economy. And the Orange 

County and L.A. Building and Construction Trades Council is reporting unemployment rates of 40 to 65 percent for their members. 

I commend Congressman Ross for introducing H.R. 4377 and the 

Subcommittee for holding this hearing. I have reviewed the bill, 

and I believe it makes important reforms that will allow critical 

projects like ours to move forward expeditiously without compromising environmental protections and the public input. 

The TCA completed the first 51 miles of our planned 67-mile toll 

road system in 12 years. However, the last 16 miles has been mired 

in the Federal environmental review and permitting process for 

over 15 years. The project was intended to be a model for improving the complex Federal environmental process by integrating reviews under the NEPA Act, the Clean Water Act, the Endangered 

Species Act, and other Federal environmental laws. 

The review process was undertaken through the formation of a 

voluntary collaborative of State and Federal agencies, working 

through a memorandum of understanding among the Federal Highway Administration, the EPA, the Army Corps of Engineers, and 

the U.S. Fish & Wildlife Service, with Federal highways being the 

lead agency. Key provisions of this MOU were the commitment by 

all agencies to reach consensus at key decision points and included 

language precluding agencies from revisiting their concurrence, except in very limited circumstances. 

This process actually involved two stages. In the first stage, the 

collaborative developed the Purpose and Need Statement and identified 24 alternatives for initial evaluation. This took 4 years. The 

second stage took 6 years, during which technical studies were performed, and these alternatives were refined, developed, and evaluated to arrive at the final 10 alternatives that would be carried forward in full analysis in the environmental impact statement. 

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*See Appendix for the attachment submitted with this statement. 

The last steps of stage two included the identification by the collaborative of agencies of an environmentally preferred alternative 

which is designated for corps purposes as the preliminary LEDPA, 

or least environmentally damaging practicable alternative. 

Having been part of the collaborative process, the U.S. Fish & 

Wildlife Service could now complete their evaluation within the 

mandated 135 days. However, it still took an additional 3 years to 

receive our biological opinion which, fortunately, came out to be 

one of no jeopardy. 

When the TCA 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. 

Our experience with this voluntary collaborative demonstrates 

that the Federal environmental process needs fundamental reform. 

Despite over a decade of effort by these agencies and the expenditure of over $20 million by the project sponsor, ourselves, this voluntary collaborative process failed as there was no agreement on 

a preferred alternative. The TCA is committed to working with all 

stakeholders to complete the project in an environmentally responsible manner while creating new jobs. The current process, however, serves as a disincentive for project opponents to work cooperatively with project sponsors to address issues, since opponents 

can delay or stop projects under the current process without any 

repercussions. 

Unfortunately, projects around the country have faced similar 

delays because of this unwieldy process which allows an endless 

and duplicative review of alternatives, with regulatory agencies 

getting numerous bites at the apple. This results in added costs 

and stops, or delays projects that would provide much-needed economic benefits and congestion relief. 

Based on our experience and frustration with the NEPA review 

and permitting process for our project, we strongly support the provisions in Congressman Ross’ RAPID Act of 2012. Thank you. 

Mr. ROSS. Thank you Mr. Margro. 

[The prepared statement of Mr. Margro follows:]* 

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Mr. ROSS. Ms. Bear, you are recognized for 5 minutes. Thank 

you. 

STATEMENT DINAH BEAR, ESQ., FORMER GENERAL COUNSEL, 

COUNCIL ON ENVIRONMENTAL QUALITY 

Ms. BEAR. Thank you very much, Mr. Chairman and Ranking 

Member Cohen. My name is Dinah Bear. I have had 25 years of 

experience serving at CEQ, helping to oversee the National Environmental Policy Act. The purpose of NEPA is not to promote or 

stop projects, but rather to provide information to the decision 

maker and to involve the public in that process. There are delays 

caused by the NEPA process, and I want to talk about delays for 

a few minutes here, not very long. 

There are some delays that are warranted. They are consistent 

and add value to the purpose of NEPA because they involve important issues that the public and the decision maker need to understand. And in that regard, I would like to quote from a transcript 

from the House Armed Services Committee, April 28, 1992, from 

Admiral James Watkins when he was serving as Secretary of Energy. When he came in as Secretary of Energy, I can tell you from 

personal experience that he was not a fan of NEPA. But after going 

through the process for a complicated decision involving the production and construction of facilities for tritium, he had this to say 

at this congressional hearing in front of the House Armed Services 

Committee, ‘‘And looking back on it, thank God for NEPA, because 

there were so many pressures to make a selection for a technology 

that it might have been forced upon us, and that would have been 

wrong for the country because as the stockpile requirements come 

down in tritium, you change technologies, perhaps. The old technologies, the heavy water reactor, the modular high-temperature 

gas-cooled reactor, may not be the best technologies for a quarter 

of the original goal of tritium. And that is what it is all about,’’ 

speaking of the NEPA process. 

There are delays that are caused by extraneous factors that are 

not within the agency’s control. There are also delays that are 

caused by internal circumstances in the agencies. It is true that, 

as Mr. Kovacs said in his written testimony, CEQ did say in 1981 

that many EISs could be produced within 12 months. That statement was made in guidance issued in January 1981. Later in that 

year, we saw two trends starting to develop that really were at 

odds with each other. One very serious trend that has had a very 

deleterious effect on agencies’ ability to comply with NEPA and 

other environmental laws in a timely manner is a dramatic decrease in internal agency resources. 

When I first started at CEQ in early 1981, there were several 

agencies and departments that had well-staffed offices for NEPA 

compliance, and those offices no longer exist today. There are many 

situations where agencies are using staff that are not well trained 

in NEPA. Many training elements of agency programs have been 

eliminated over the years. And this is on a bipartisan basis, I 

might add. 

And as a result of the reduction in much of the staff doing 

NEPA, a number of EISs—particularly EISs for large construction 

projects—are done by consultants or contractors. In my—and I 

78 

mean absolutely no disrespect to contractors or consultants. There 

are many, many fine consultants in the field. But in my experience, 

the fastest EISs are done in-house by agencies. I have seen EISs 

done in less than 12 months. But every time I have seen that happen, it has been done by staff within the agency. When you have 

a consultant involved, it just adds an extra layer of time where the 

consultant has to get approvals and consult with the agency and 

that inevitably takes a longer time. 

At the same time that agencies were getting this reduction in 

staff, which hampered their ability to carry out NEPA and shifting 

much of the NEPA compliance to consultants, CEQ and many others involved in the NEPA process began promoting much more 

heavily the integration of all other environmental compliance laws 

within the NEPA framework. For a number of reasons, that makes 

a lot of sense. But it also makes it harder to meet shorter timelines 

and shorter page limits, for that matter. Both of those trends have 

continued since 1981. 

Let me take a minute or two and talk about concerns with the 

bill. I have serious concerns about eliminating CEQ’s conflict-of-interest provisions for projects at the EIS level. I think it is extremely bad policy. I have concerns with the project default provisions in the bill, the approval default. I have concerns with the 

omission of all involvement of county governments and tribal governments in this bill. The bill does not codify the recent CEQ guidance, as has been suggested. It picks up many of the same themes 

in kind of bullet point, but the details are quite different. 

SAFETEA-LU was written specifically for highways, which has 

some very unique constructs on how NEPA is done in the highway 

situation and cannot easily be translated to many other agencies, 

including independent regulatory agencies and agencies with an 

administrative appeals process. And there are a number of ambiguities in the bill that make it difficult to understand how it would 

actually work. 

I see my time is out. Thank you very much. I would be happy 

to answer any questions. 

Mr. ROSS. Thank you Ms. Bear. 

[The prepared statement of Ms. Bear follows:] 

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Prepared Statement of Dinah Bear, Esq., former General Counsel, 

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Mr. ROSS. And I will now recognize myself for 5 minutes of questions. 

Ms. Bear are you suggesting then that the status quo is okay? 

Ms. BEAR. No, I am not suggesting that the status quo is okay. 

First of all, I think it is imperative to give agencies adequate resources to actually comply with environmental laws. 


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Mr. ROSS. And those are the same agencies that would issue 

their EISs within 12 months? 

Ms. BEAR. Yes. And in fact, I think one thing that several of the 

witnesses here, including myself, agree on is that SAFETEA-LU 

has made some improvements in the process. 

Mr. ROSS. In fact you hit on something right there. Process. I 

think what we are lacking ultimately now is any due process for 

resolution of these permitting projects. 

Ms. BEAR. Right. But one of the innovations that has taken place 

in the highway field—and I don’t remember if it was Mr. Kovacs 

or Mr. Bauman who talked about the reduction in time—one of the 

innovations in the highway situation has been provisions allowing 

the highway agencies to fund additional staff for the resource agencies so that they can work on those permits. 

Mr. ROSS. And wouldn’t concurrent as opposed to sequential review assist in that regard? 

Ms. BEAR. Yes. 

Mr. ROSS. And in fact, wouldn’t sharing data also be something 

that should be done? And it is not being done now? 

Ms. BEAR. Yes. Concurrent review and sharing data is already 

part of the CEQ regulations. But you have to have somebody at the 

desk and at the phone to do that. So sharing the funding has 

helped the highway situation. 

Mr. ROSS. Mr. Bauman, it is interesting, as a lawyer, I think 

that the process is real important. I guess my concern here is that 

under the current structure that we have today, there appears to 

be no process, no due process available to someone seeking to have 

a project permitted at—I guess there is no recourse other than if 

you want to stand on the sidelines and 6 years later object and file 

suit. I mean, doesn’t this RAPID Act at least provide the procedural infrastructure that is necessary in order to expedite the permitting process? 

Mr. BAUMAN. Right. Well, what it does—and I was speaking to 

the core of it, that so many people who have to deal with this every 

day have always advocated is that it would require everyone to 

stick to a schedule. Everyone knows what the deadlines are. And 

then if someone is unhappy, then you go to court. But then that 

is done within just a few years—not to have many years go by before the person goes to court to contest the final decision. It is that 

enormous time that goes by now. Either way, you are going to go 

to court relatively soon or much, much later. If it is much, much 

later, the delays that then go on extend onward. That is the reality 

of what happens. 

Mr. ROSS. And the ripple effect of that is that the investment is 

not made, the jobs are not created. 

Mr. BAUMAN. Right. 

Mr. ROSS. And if the developer or whomever it is that is putting 

their capital at risk can’t use this process, they will go elsewhere. 

Mr. BAUMAN. Well, the people who make a lot of money on this 

process are the environmental consulting companies and the lawyers. 

Mr. ROSS. Mr. Kovacs, you describe in your written testimony 

how NEPA does not function as it was designed to function when 

it was adopted in 1969. In your opinion what has caused the enviVerDate Aug 31 2005 10:05 Jun 05, 2012 Jkt 000000 PO 00000 Frm 00096 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\042512\73964.000 HJUD1 PsN: DOUGA
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ronmental review process to get so far out of hand? And how will 

the RAPID Act help get things back on track? 

Mr. KOVACS. Well, when Congress passed NEPA in 1970 it was 

a very straightforward statute that expected there to be a review 

of the environmental issues and for those issues to be balanced by 

the agencies and to take any mitigating action. Congress in fact, 

even in the original NEPA, did not even have a private cause of 

action and never anticipated any of this litigation. And if you go 

back and you read what Scoop Jackson or Ed Muskie were saying, 

they were talking about a process where the agencies were not 

doing any environmental review, and they needed to have that environmental review forced on them. Congress did a wonderful job 

of doing that. 

What seemed to happen after that is the courts took control of 

the process, and then I believe it was Judge Skelly Wright recognized for the first time that there was a private cause of action because Congress actually did not delegate the absolute discretion to 

the agencies. And from that point, it just exploded. It was this little 

tiny ball with one lawsuit. And now it is one of these issues where 

there is complete uncertainty because you never know if you have 

examined enough issues and enough alternatives to satisfy the 

courts. So what happens is, because you don’t know how to satisfy 

the courts and you don’t know what the next alternative is going 

to be, you do study after study. And that is what brings the uncertainty into the process. 

Mr. ROSS. The Project No Project report that you did that I had 

a chance to review is nondiscriminatory. It addressed energy 

projects that are not only carbon-based and contemporary but also 

renewable green energy projects that could not pass this permitting 

process and then would give it up. I mean, this has an impact on 

everything that we want to do in terms of the permitting process 

regardless of how good the idea is. 

Mr. KOVACS. That is correct. We did not. We could have done big 

box stores. We could have done cell towers. There were a lot of 

things. They are all having the same problems. So it is not just 

even energy facilities. We did not discriminate. And in fact, as I 

mentioned, I think the biggest surprise we had is that far more renewable projects were actually caught up in this process. And if 

you just look at Cape Wind, for example, they are now on I think 

their 11th year, and they have had the Federal Government approve the permit several times and they still can’t get the permit 

through. 

Mr. ROSS. Amazing. Thank you. I see my time is up. I will recognize the Ranking Member from Tennessee, Mr. Cohen for 5 minutes. 

Mr. COHEN. Thank you, Mr. Ross. Ms. Bear, you seem to have 

a lot of information and not enough time. Before I ask you just a 

general question, you mentioned something about a conflict-of-interest provision. Can you explain that to me and why you think 

that is a problem? 

Ms. BEAR. Yes. Under the current CEQ regulations, consultants 

or contractors hired to prepare environmental impact statements 

have to sign a disclosure statement avowing that they have no financial or other interest in the outcome of the project. This is beVerDate Aug 31 2005 10:05 Jun 05, 2012 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\042512\73964.000 HJUD1 PsN: DOUGA
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cause these are the projects with the most serious environmental 

impacts, and the feeling has always been that the public and decision makers need to have that information from a source that is 

both unbiased and has the appearance of not being biased. H.R. 

4377 allows the project sponsor themselves—whether it is a private 

sponsor or a public agency—to actually prepare the environmental 

impact statement. Obviously a private sponsor has a financial interest in the project. 

Mr. COHEN. That would kind of be like having TransCanada do 

the impact statement for the Keystone XL pipeline? 

Ms. BEAR. Precisely. 

Mr. COHEN. Wow. That wouldn’t be too unbiased, would it? 

Ms. BEAR. Not in my view. 

Mr. COHEN. For the other three panelists, how do you explain 

that? Is that not an inherent conflict? Mr. Bauman. 

Mr. BAUMAN. Mr. Cohen, that provision is in there. I didn’t write 

the bill. It is in the bill. I didn’t speak to that. To me, it is completely unnecessary to the issue of inordinate delay that we did 

speak to. That is a separate issue. I don’t disagree with the Congressman’s question about it. 

Mr. COHEN. Mr. Kovacs, do you think that is a good idea to just 

eliminate the conflict of interest and let the project folk hire their 

guns? 

Mr. KOVACS. I think before we throw out the entire provision, I 

think when you get to the conflict of interest—first of all, there 

should be conflict-of-interest provisions. I have no problems with 

that. But I think that the overall writing provision that I think Ms. 

Bear is addressing is the fact that a sponsor, for example, could actually either pay for the EIS or actually make a voluntary contribution. There are States like California that do that. I mean you can’t 

keep continuously talking about a lack of resources but then not 

find some way in which to get the person responsible for it to pay 

for it. 

For example, in my very young days I was chairman of the Virginia Hazardous Waste Siting Board, and the actual applicants 

paid for the application itself for us to process, so that there was 

some financial ability for the State to carry on this kind of an argument. 

So you have two things in the bill: One is, you have the project 

sponsor to pay for it. But if you read further down, there are provisions where the agency must exercise independent judgment and it 

must evaluate it independently. Well, I would suggest, Congressman, that virtually every agency from EPA down uses outside 

sources of information when they are doing a rule. The rule isn’t 

that they can’t do it or that they can’t adopt this by reference or 

take someone else’s study. They have to exercise independent judgment. So this just tracks that. And the second thing is in terms of 

voluntary contributions; if you are upset with the project sponsor 

doing it, then ask for a voluntary contribution so that the agency 

can handle it and get the proper staff. 

Mr. COHEN. Does the voluntary contribution in itself raise some 

issue about conflict? I mean, who pays—you work for the Chamber. 

Mr. KOVACS. That is correct. 

95 

Mr. COHEN. So you have got certain perspectives that are the 

Chamber’s perspectives. But if you worked for the Sierra Club and 

they paid your salary, I am sure you would be just as good an advocate. So it does make a difference on who pays. 

Mr. KOVACS. I think the question is—and it seems to be the legal 

standard. I will let the real practicing lawyers answer that. 

The standard is, is the agency exercising independent judgment? 

And the courts review this all the time. If the agency just adopts 

it without looking at it, the courts are probably going to set it 

aside. But the question is independent judgment and control; not 

necessarily is the process wrong. 

Mr. COHEN. Ms. Bear, have you been won over by Mr. Kovacs’ 

arguments and now think this is a great idea? 

Ms. BEAR. No. 

Mr. COHEN. Surprise, surprise. 

Ms. BEAR. I know you are shocked. 

First of all, agencies—because of the constraint on agency resources, it is already the case that many EISs are paid for by the 

project applicants. For example, their processes are generally referred to as the third-party process, where the applicant pays for 

a consultant who is chosen by the lead agency and who works 

under the direction of the lead agency as opposed to the proponent. 

And in those situations, there is usually either an MOU or a 

memorandum of agreement or a memorandum of understanding 

setting out constraints between communications between the applicant and the EIS consultant, because the EIS consultant, even 

though the firm is being paid for by the applicant, is actually working for the agency. 

But there is one other thing I want to clarify here. While the bill 

does have a provision where agencies could directly accept a series 

apparently of voluntary contributions from the applicant, it also 

specifically says, ‘‘Upon the request of any project sponsor to the 

lead agency, the project sponsor shall be authorized to prepare the 

document.’’ So they can both prepare the document directly or they 

can offer these payments directly to the agency, which most of the 

time, agencies cannot do today—that is true. 

There are prohibitions in appropriations laws and a variety of 

other laws, including I believe some ethics constraints about agencies taking money directly from the private sector. 

Mr. COHEN. Thank you. Mr. Ross, I would like to ask unanimous 

consent that a letter I have here from Ms. Nancy Sutley, who is 

the chair of the Council on Environmental Quality, be entered into 

the record. 

Mr. ROSS. Without objection, so ordered. 

[The letter referred to follows:] 

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Mr. COHEN. And I yield back the balance of my time. Or the proverbial ‘‘my time is out,’’ and I yield back. 

Mr. ROSS. Thank you. The distinguished gentleman from Colorado, Mr. Polis, is recognized for 5 minutes. 

Mr. POLIS. I thank the Chair. I appreciate the hearing on this 

important topic. My constituents have certainly voiced to me a 

frustration with an open-ended and often interminable NEPA 


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project for—whether it is transportation or infrastructure projects 

or renewable energy projects that have strong support on the 

ground. 

And I was enheartened in part by the 2006 NEPA task force and 

also by President Obama’s Council on Competitiveness recommendations around streamlining. And I think it is critical to 

strike the right balance in this regard. So hopefully we can find a 

way to accelerate an often interminable process. 

I want to ask about some of the differences between the 2006 

task force and this proposed bill. It is my understanding that the 

task force recommended that there be a timeline; namely, that the 

agencies have 18 months to complete EIS and 9 months to complete an EA. And I don’t know what the right time should or 

shouldn’t be. But it is my understanding that the mechanism in 

this bill is actually automatic approval if the timeline isn’t met, 

versus simply requiring that a certain timeline is met. 

Is there any problem with requiring under statute a certain 

timeline that is met rather than holding a gun to the head and saying it is automatically approved if it is not met? Is there a distinction between those two? Or do you think it would be consistent 

with meeting the needs of this legislation if we simply require the 

agencies to meet a timeline without getting into what the timeline 

is? I will address that to Mr. Bauman. 

Mr. BAUMAN. I would take anything that Congress could do just 

to say there shall be a schedule, there shall be deadlines. You can 

set them out. You have done it in other environmental statutes, 

like the Clean Air Act. So just doing that, you would be shocked 

at how behavior would change and the NEPA process, which goes 

on interminably and is used and abused by many folks—Dinah is 

right. No one ever intended that NEPA would turn into what it has 

become. The only way it is going to reform itself is if you put in 

these basic reforms, then the agencies will follow. So you don’t need 

the automatic—it is deemed approved, I think, to change the behavior of ‘‘get the process done.’’ Thank you. 

Mr. POLIS. Reclaiming my time, the main issues that I have had 

have been less around outcomes or changes; more around the interminable timeline of approval. And again, a lack of certainty around 

what that timeline is. 

Mr. Bauman alluded to the history of NEPA. And I would like 

to address this to Ms. Bear as well. As general counsel under the 

Reagan administration, you had a lot of oversight over the implementation of NEPA. I would like you to address how this bill will 

impact the existing NEPA framework that has been in place for 40 

years, and also significant changes, and why are we hearing more 

about this now, for instance, than we did in prior incarnations? 

Ms. BEAR. Okay. A complete answer would be very lengthy. So 

let me hit a few points and then I would be happy to submit additional thoughts for the record. 

First, just for a minute, I want to address the issue of schedules, 

which is part of your question, although I realize your question 

goes much further than that. But I want to note that when CEQ 

issued the regulations that are binding on Federal agencies for the 

NEPA process in 1979, the single most requested provisions by industry representatives, including I believe the Chamber, but many 

101 

other industry business representatives, was a provision to allow 

the proponent to ask the agency to set a time schedule, and that 

the agency, upon that request, would have to set a time schedule. 

In 25 years being general counsel, deputy general counsel at 

CEQ, no industry representative ever came to me and said, ‘‘I 

asked an agency to set a time schedule and they didn’t.’’ Or ‘‘I 

asked an agency to set a time schedule. They did, and they are not 

complying with it.’’ And in fact to the best of my knowledge, the 

only person who has ever used that provision on behalf of their clients is the attorney who was actually responsible for writing the 

regulation. 

Mr. POLIS. Since we have limited time, is there any way that we 

can make that exemption perhaps less cumbersome or easier to 

use? Because perhaps one of the reasons it is so rarely used is it 

is too difficult to use. 

Ms. BEAR. All they have to do is ask. I am not quite sure what 

the difficulty is. 

Mr. POLIS. So it is fairly easy to ask for the timeline? 

Ms. BEAR. Yes. I think so. 

Mr. POLIS. Is it more a mater of educating those who are applying that that should be something they ask for? 

Ms. BEAR Yes. And I have spoken about this in front of a number 

of industry groups. 

Mr. POLIS. It would be a bit of a moral hazard there, because as 

was alluded to, many of the attorneys involved with the process 

might actually profit more from an ongoing delayed process, versus 

the principals who would profit from a short process. 

Ms. BEAR. Too many attorneys on this panel to—— 

Mr. POLIS. Present company excepted, of course. 

I would just ask for an additional minute to allow her to finish 

her answer, if that is all right, Mr. Chair. 

Mr. ROSS. Without objection, please go ahead. 

Ms. BEAR. Okay. I don’t believe you were here when I was giving 

my 5-minute summary. But one of the difficulties that I think is 

affecting the timing of the NEPA process or how long it takes are 

agency resources. And I started CEQ in 1981. As I mentioned, 

there were departments and agencies that had whole offices devoted to complying with NEPA, with well-trained staff. Many of 

those offices are no longer there. 

The NEPA process, particularly for contractor—for project proponent proposals coming from outside of the Federal Government, 

many EISs are done by consultants for a number of reasons. And 

this is not a slam at consultants. There are some very good ones 

out there. But it tends to slow the process down. The EISs I have 

seen that are done within a 12-month period are done in-house by 

internal agency staff, but the capabilities of agencies for doing that 

is vastly diminished. So that is one very important area I think 

that needs to be addressed. 

I think schedules are good. I think dispute resolution processes 

are good. I have no concerns about the dispute resolution process, 

for example, in the SAFETEA-LU bill. I am concerned that this 

bill, as you said, creates a scheme that is—well, you didn’t say this, 

but I will—a scheme that is different in many fundamental ways 

from the CEQ regulations. First of all, it carves out one segment 

102 

of the NEPA process, which is construction projects. NEPA applies 

to a lot of other things. So you have automatically two different 

processes. But within this process, in my view, some of the most 

serious problems are, as was just discussed, eliminating the conflict-of-interest provision, allowing private project proponents to 

prepare environmental impact statements themselves, as well as 

giving funding directly to agencies. The default—— 

Mr. ROSS. Ms. Bear, I unfortunately have got to wrap it up here. 

I apologize. And I don’t mean to cut you off. We have a 

fullCommittee hearing here in 5 minutes. And believe me, I would 

love to explore more. I think this panel would too. 

And Mr. Margro, I have got questions I would like to ask you. 

Unfortunately, due to the fact that we have to be out of this room 

in 5 minutes, we are going to have to adjourn our hearing. But I 

do want to state for the record that all Members will have 5 legislative days to submit to the Chair additional written questions for 

the witnesses which we will forward and ask the witnesses to respond as promptly as they can so that their answers will be a part 

of the record. 

Without objection, Members will also have 5 legislative days to 

submit any additional materials for including in the record. 

I want to thank the witnesses for being here. I apologize for the 

delay, but I think it was very good for us to have this. I wish you 

all well. And this hearing is now adjourned. 

[Whereupon, at 1:25 p.m., theCommittee was adjourned.] 

(103) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial and Administrative Law 

H.R. 4377, the ‘‘Responsibly and Professionally Invigorating Development Act of 

2012,’’ or ‘‘RAPID’’ Act, creates a new subchapter of the Administrative Procedure 

Act to prescribe how the environmental reviews required by the National Environmental Policy Act, or ‘‘NEPA,’’ should be conducted for federal construction projects. 

The bill also imposes deadlines for the granting of permits once the NEPA review 

process is complete. 

NEPA was signed into law by President Richard Nixon and went into effect on 

January 1, 1970. Among other things, NEPA requires that ‘‘for proposals for legislation and other major Federal actions significantly affecting the quality of the human 

environment,’’ federal agencies must prepare a detailed environmental review. 

NEPA also created the Council on Environmental Quality, which issued regulations 

and guidance implementing NEPA. 

While NEPA itself is short, it is these regulations, plus 40 years worth of case 

law, that define the details of how the environmental reviews required by NEPA are 

carried out. H.R. 4377 appears to codify some of what is already out there in terms 

of how NEPA reviews are conducted. In other ways, however, H.R. 4377 appears 

to be a significant departure from current practice. 

I will leave it to our witnesses to discuss the substantive merits of H.R. 4377. As 

the Ranking Member of the Subcommittee with jurisdiction over the APA, however, 

I do think it important to raise one concern at the outset. 

It is unclear to me why all the changes to or codifications of NEPA practice contemplated in H.R. 4377 belong in the APA. If H.R. 4377’s proponents would like to 

amend or add to NEPA’s environmental review requirements, they should simply 

go ahead and amend NEPA. 

I am very wary of using the APA as a back door way of amending other statutes 

or substantive law. As I have said many times before, the APA is our ‘‘administrative Constitution.’’ 

And like the actual Constitution, we should be very careful in tinkering with it. 

I am concerned that H.R. 4377, as drafted, 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 we ought to guard against that temptation. 

I thank our witnesses for being here today. In particular, I would like to acknowledge Gus Bauman, an accomplished lawyer and an old acquaintance of mine from 

Memphis. 

I would also like to acknowledge Dinah Bear, who served for a quarter century 

as the General Counsel for the Council on Environmental Quality and, therefore, 

knows NEPA and its associated regulations, case law, and guidance better than almost anyone else. 

I welcome all of our witnesses and look forward to their testimony. 

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Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

The title of H.R. 4377, namely, the ‘‘Responsibly and Professionally Invigorating 

Development Act of 2012,’’ or ‘‘RAPID Act,’’ unfortunately is misleading. 

Rather than effectuating real reforms to the process by which federal agencies undertake environmental impact reviews as required by the National Environmental 

Policy Act, or NEPA, this legislation will actually result in increasing, not expediting this process. 

And, it inexplicably only addresses a subset of these reviews: those that pertain 

to construction projects that are federally-funded or that require federal approval. 

But, more importantly, this bill is yet another effort by my friends on the other 

side of the aisle to undermine regulatory protections. 

In fact, this is the thirteenth hearing at which we have considered an anti-regulatory measure this Congress. 

As with all the other bills, H.R. 4377 is a thinly disguised effort to hobble the 

ability of federal agencies to be able to do the work that we in Congress have assigned them to do. 

H.R. 4377 very much embodies many themes reflected in other anti-regulatory 

bills that we have considered this Congress, but at least three concerns stand out. 

First, this bill—like other measures that we have previously considered—is a solution in search of a problem. It is unclear what exactly is the problem H.R. 4377 

seeks to address. 

While the NEPA environmental review process may not be perfect, it still remains 

a model for other countries throughout the world for establishing a systemic foundation for facilitating interagency collaboration, integrated decisionmaking, and public 

input on environmental impact statements and assessments. 

Like the Administrative Procedure Act, NEPA provides a flexible review framework for all federal projects—not just construction projects—that require federal approval pursuant to other federal statutes like the Clean Air Act. 

NEPA appropriately leaves it to individual agencies to craft regulations implementing the Act’s environmental review requirement in recognition of that fact that 

such reviews must be tailored to specific types of projects. 

H.R. 4377 instead uses a one-size fits all approach that incorporates numerous 

specific procedural steps that may or may not work well in all instances. This is 

an undertaking that we should be very wary of taking. 

In response to the complaint of H.R. 4377’s proponents that NEPA reviews sometimes take too long, I say that the real problem is not with the requirements of the 

review process—which may vary from project to project or from agency to agency— 

but with the lack of resources that we give to agencies. 

An agency can only move so quickly to review project proposals when it has evershrinking appropriations to obtain competent staff and other resources. 

Yet I am willing to bet that some of the proponents of this bill would also strenuously oppose increasing funding for agencies, which would certainly help to speed 

up the review process. 

Second, it is clear that the real motivation underlying H.R. 4377 is to shift power 

away from a government accountable to the public and hand it to politically unaccountable industry so that it can run roughshod over everyone else. 

This general tack is highlighted by a number of the bill’s provisions. 

For example, H.R. 4377 facilitates potential corruption or, at a minimum, encourages an unseemly relationship between industry and regulators by allowing a lead 

agency to accept ‘‘voluntary contributions’’ from a project sponsor, which the agency 

must use to undertake an environmental review. 

In its most gross context, this provision seems to authorize a bribe. Under current 

law, it is a crime to give an item of value to a federal entity in exchange for an 

official act. 

While H.R. 4377’s authorization of ‘‘voluntary contributions’’ perhaps may not fall 

squarely within the statutory definition of a bribe, this provision fails to delineate 

any brightlines between the two. 

105 

Even if not a bribe, such contributions could unduly taint the environmental review process and create the appearance of a conflict of interest for agencies. At a 

minimum, cash-strapped agencies, in particular, may prioritize reviews of projects 

for which sponsors have paid for the review and ignore those for which no payment 

was offered. 

In addition, the bill appears intended to limit the opportunity for public participation and impose deadlines that may be unrealistic under certain circumstances. 

Third, H.R. 4377 would create a parallel environmental review process that 

would only lead to confusion, delay, and litigation. 

As I noted at the outset, the changes to the NEPA review process contemplated 

by H.R. 4377 apply only to proposed federal construction projects. 

NEPA, however, applies to a broad panoply of federal actions, including fishing, 

hunting, and grazing permits, land management plans, Base Realignment and Closure activities, and treaties. In contrast, H.R. 4377 applies only to a subset of federal activities. 

In fact, even this subset is ill-defined under H.R. 4377, as the bill has no definition for what actually would constitute a construction project. 

This could lead to two different environmental review processes for the same 

project. For example, H.R. 4377’s requirements would apply to the construction of 

a nuclear reactor, but not to its decommissioning or to the transportation and storage of its spent fuel. 

Rather than streamlining the NEPA process, H.R. 4377 only adds complication, 

confusion, and potential litigation to the process. 

I appreciate that the supporters of this bill have tried to reach out to the Committee minority to try to garner support. Unfortunately, I am not able to lend my 

support for this bill as it raises too many concerns for me. 

I think the testimony of Dinah Bear, who served as the General Counsel of the 

Council for Environmental Quality at the White House under both Republican and 

Democratic administrations for a total of 25 years, will be particularly instructive. 

I thank her and the other witnesses for agreeing to participate in today’s hearing. 

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Attachment to the Prepared Statement of Thomas Margro, CEO, 

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Letter from Organizations Opposed to the Legislation 


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Response to Post-Hearing Questions from William L. Kovacs, Senior Vice 

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Post-Hearing Questions submitted to Gus Bauman, Esq., 

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Response to Post-Hearing Questions from Dinah Bear, Esq., 

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Response to Post-Hearing Questions from Thomas Margro, CEO, 

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