Justice in Power Plant Permitting Act
Bill: H.R.6548 | Sponsor: Rep. Maloney, Carolyn B. (D-NY)
Policy area: Energy

Summary:
Justice in Power Plant Permitting Act
This bill addresses renewable energy use and facility contracting requirements and also establishes the Just Energy Transition Fund to, among other purposes, support projects to replace plants that are denied under the revised Clean Air Act permitting process established by this bill.

To establish new Federal renewable energy use requirements, support the 
  equitable transition to clean energy power generation, and require 
    cumulative impact assessments for fossil fuel-fired power plant 
                  permitting, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Justice in Power Plant Permitting 
Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Community intervenor.--The term ``community 
        intervenor'' means an effective, qualified, and compensated 
        representative, or group of representatives, that participates 
        in public service commission and permitting authority 
        proceedings on behalf of ratepayers in, and residents of, 
        impacted environmental justice communities and other impacted 
        communities to--
                    (A) propose independent analyses of, including 
                alternatives to, fossil fuel-fired power plants and 
                other polluting projects seeking approvals, permits, or 
                renewals;
                    (B) decrease electricity costs;
                    (C) reduce environmental burdens;
                    (D) improve public health; or
                    (E) otherwise advocate to benefit such communities.
            (2) Critical facility.--The term ``critical facility'' 
        means any facility critical to public health infrastructure, 
        including health care, water and wastewater systems, and 
        emergency services.
            (3) Cumulative impacts.--The term ``cumulative impacts'' 
        means any exposure to a public health, environmental, or 
        climate risk, or other effect occurring in a specific 
        geographical area, including from an emission, discharge, or 
        release--
                    (A) including--
                            (i) environmental pollution released--
                                    (I) routinely, accidentally, or 
                                otherwise; and
                                    (II) from any source, whether 
                                single or multiple; and
                            (ii) as assessed based on the combined 
                        past, present, and reasonably foreseeable 
                        emissions and discharges affecting the 
                        geographical area; and
                    (B) evaluated taking into account sensitive 
                populations and other factors that may heighten 
                vulnerability to environmental pollution and associated 
                health risks, including socioeconomic characteristics.
            (4) Environmental justice.--The term ``environmental 
        justice'' means the fair treatment and meaningful involvement 
        of all people regardless of race, color, culture, national 
        origin, linguistic isolation, or income, with respect to the 
        development, implementation, and enforcement of environmental 
        laws, regulations, and policies to ensure that each person 
        enjoys--
                    (A) the same degree of protection from 
                environmental and health hazards; and
                    (B) equal access to any Federal agency action on 
                environmental justice issues in order to have a healthy 
                environment in which to live, learn, work, and 
                recreate.
            (5) Environmental justice community.--The term 
        ``environmental justice community'' means a community with 
        significant representation of communities of color, low-income 
        communities, or Tribal and Indigenous communities, that bears 
        burdens of negative public health effects, environmental 
        pollution, and the impacts of climate change, and possesses 
        certain socioeconomic criteria, which may be identified based 
        on geographic, public health, environmental hazard, and 
        socioeconomic criteria, including, but not limited to--
                    (A) areas burdened by cumulative environmental 
                pollution and other hazards that can lead to negative 
                public health effects;
                    (B) areas with concentrations of people--
                            (i) experiencing high unemployment rates, 
                        high rent burdens, low homeownership rates, or 
                        low levels of educational attainment; or
                            (ii) who have historically experienced 
                        discrimination on the basis of race, ethnicity, 
                        ancestry, or place of origin; or
                    (C) vulnerability to the impacts of climate change.
            (6) Fossil fuel-fired power plant.--The term ``fossil fuel-
        fired power plant'' means--
                    (A) a powerplant or electric generating unit that 
                combusts fossil fuel or a fossil fuel byproduct or 
                derivative for the production of electricity in part or 
                in full; and
                    (B) any boiler or generator that combusts fossil 
                fuel and is--
                            (i) in a census tract or adjacent to a 
                        census tract with one or more power plants or 
                        electric generating units that combust fossil 
                        fuel; or
                            (ii) in a census tract or adjacent to 
                        census tracts with stationary and mobile 
                        sources of air pollution that have combined 
                        annual emissions of more than--
                                    (I) 10 tons per year of any single 
                                hazardous air pollutant;
                                    (II) 25 tons per year for any 
                                combination of hazardous air 
                                pollutants;
                                    (III) 100 tons per year of any 
                                single air pollutant; or
                                    (IV) the lower major source 
                                threshold in non-attainment areas for 
                                the air pollutant in non-attainment.
            (7) Impacted.--The term ``impacted'' means the condition of 
        being affected by one or more fossil fuel-fired power plants.
            (8) Permitting authority.--The term ``permitting 
        authority'' has the meaning given such term in section 501 of 
        the Clean Air Act (42 U.S.C. 7661).
            (9) Susceptible subpopulation.--The term ``susceptible 
        subpopulation'' means a group of individuals within the general 
        population who, due to either greater susceptibility or greater 
        exposure, may be at greater risk than the general population of 
        adverse health effects from exposure to air pollution, such as 
        infants, children, pregnant women, workers, or the elderly.
            (10) Tribal and indigenous community.--The term ``Tribal 
        and Indigenous community'' means a population of people who are 
        members of--
                    (A) a federally recognized Indian Tribe;
                    (B) a State-recognized Indian Tribe;
                    (C) an Alaska Native or Native Hawaiian community 
                or organization; or
                    (D) any other community of Indigenous people 
                located in a State.

SEC. 3. FEDERAL REQUIREMENT.

    (a) Requirement.--Section 203 of the Energy Policy Act of 2005 (42 
U.S.C. 15852) is amended--
            (1) in subsection (a), by striking ``the following amounts 
        shall be'' and all that follows and inserting the following: 
        ``not less than--
            ``(1) 3 percent shall be renewable energy in fiscal years 
        2007 through 2009;
            ``(2) 5 percent shall be renewable energy in fiscal years 
        2010 through 2012;
            ``(3) 7.5 percent shall be renewable energy in fiscal years 
        2013 through 2019; and
            ``(4) 100 percent shall be air pollution-free renewable 
        energy, including battery storage charged renewably, in fiscal 
        year 2030 and each fiscal year thereafter, with steady and 
        incremental progress toward this goal required in fiscal years 
        2020 through 2029.''; and
            (2) by amending subsection (c) to read as follows:
    ``(c) Prioritization.--In meeting the requirement of subsection 
(a), the President, acting through the Secretary, shall prioritize the 
transition to consumption of air pollution-free renewable energy, 
including renewable energy and battery storage charged by renewably 
generated electricity, by any facility within the vicinity of a major 
source (as that term is defined in section 112 of the Clean Air Act (42 
U.S.C. 7412)), or units of such major source, run primarily to meet 
peak electricity demand.''.
    (b) Public Utility Contracts.--Section 501(b)(1)(B) of title 40, 
United States Code, is amended to read as follows:
                    ``(B) Public utility contracts.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), a contract for public utility 
                        services may be made for a period of not more 
                        than 10 years.
                            ``(ii) Renewable energy contracts.--A 
                        contract may be made for a period of not more 
                        than 40 years for--
                                    ``(I) the acquisition of air 
                                pollution-free renewable energy or 
                                battery storage powered by such energy; 
                                or
                                    ``(II) the provision and operation 
                                of air pollution-free renewable energy 
                                production facilities and the purchase 
                                of air-pollution free renewable energy 
                                from such facilities.''.

SEC. 4. JUST ENERGY TRANSITION FUND.

    (a) Authorization of Appropriations.--There is authorized to be 
appropriated for fiscal year 2023, $10,000,000,000 for a Just Energy 
Transition Fund, to be administered by the Administrator in 
consultation with the Secretary and the Advisory Council, to remain 
available until expended, to award funds to States, territories, and 
Tribal governments for projects described in subsection (b).
    (b) Eligibility.--To be eligible for a grant under this section, a 
State, territory, Tribal government, local government, community-based 
organization, nongovernmental organization, or private sector 
organization may submit an application, in such form and manner as the 
Administrator may require, for--
            (1) a project that--
                    (A) addresses energy needs resulting from the 
                denial of renewal, or anticipated denial of renewal, of 
                a permit for a fossil fuel-fired power plant pursuant 
                to section 165(f) or section 502(j) of the Clean Air 
                Act;
                    (B) apportions sufficient project funds, as 
                determined by the Advisory Council, to income support, 
                health insurance, pension fund protection, job 
                training, and job placement for workers displaced or 
                expected to be displaced due to the denial of renewal, 
                or anticipated denial of renewal, of a permit for a 
                major source or a fossil fuel-fired power plant 
                pursuant to section 165(f) or section 502(j) of the 
                Clean Air Act;
                    (C) is supported by residents of impacted 
                environmental justice communities and other impacted 
                communities, as discerned through active and inclusive 
                solicitation and documentation of feedback and input 
                from such residents through a process established by 
                the Advisory Council;
                    (D) does not rely on fuels or technologies that 
                create environmental harm, including greenhouse gas 
                emissions and air pollution, or contribute to health 
                burdens on environmental justice communities and 
                impacted communities; and
                    (E) results in a quantifiable improvement to the 
                health and well-being of residents of impacted 
                environmental justice communities and other impacted 
                communities as measured by the Advisory Council; or
            (2) a program supported by residents of impacted 
        environmental justice communities and other impacted 
        communities, as discerned through active and inclusive 
        solicitation and documentation of feedback and input from such 
        residents through a process established by the Advisory 
        Council, that results in a quantifiable improvement to the 
        health and well-being of residents of environmental justice 
        communities and other impacted communities, as measured by the 
        Advisory Committee, including one that--
                    (A) apportions funds to individuals who face 
                burdensome energy costs, including from supply charges, 
                delivery charges, capacity payments, and other costs 
                that may or may not be itemized in utility bills, or to 
                individuals who are expected to face burdensome costs 
                due to the denial of renewal, or anticipated denial of 
                renewal, of a permit for a fossil fuel-fired power 
                plant pursuant to section 165(f) or section 502(j) of 
                the Clean Air Act, to reduce the cost of--
                            (i) utility bills for ratepayers; or
                            (ii) the cost of rent for tenants in 
                        instances in which utilities are included in 
                        the tenant's rent; or
                    (B) supports intervenor compensation opportunities 
                to lower energy costs and reduce pollution faced by 
                residents of impacted environmental justice communities 
                and other impacted communities.
    (c) Process.--Not later than 60 days after the date of enactment of 
this section, the Administrator, in coordination with the Secretary and 
the Advisory Committee, shall establish a process of applying for funds 
allocated under subsection (a).
    (d) Subgrants and Contracts.--A recipient of funds under this 
section may award such funds to community groups and other entities as 
subgrants or contracts in furtherance of a project described in 
subsection (b).
    (e) Just Energy Transition Fund Advisory Council.--
            (1) Establishment.--The President shall establish an 
        advisory council, to be known as the ``Just Energy Transition 
        Fund Advisory Council''.
            (2) Membership.--The Advisory Council shall be composed of 
        26 members who have knowledge of, or experience relating to, 
        the creation of, and transition of workers to, good-paying jobs 
        to combat climate change and pollution, as well as the effect 
        of environmental conditions on environmental justice 
        communities, including--
                    (A) representatives of--
                            (i) community-based organizations that 
                        carry out initiatives relating to environmental 
                        justice and the just transition to a clean 
                        energy economy, including grassroots 
                        organizations led by people of color;
                            (ii) labor unions;
                            (iii) State governments, Tribal 
                        governments, and local governments;
                            (iv) Indian Tribes and other Indigenous 
                        groups;
                            (v) nongovernmental and environmental 
                        organizations; and
                            (vi) private sector organizations 
                        (including representatives of industries and 
                        businesses); and
                    (B) experts in the field of--
                            (i) socioeconomic analysis;
                            (ii) health and environmental effects;
                            (iii) exposure evaluation;
                            (iv) environmental law and civil rights 
                        law;
                            (v) environmental health science research; 
                        or
                            (vi) energy systems.
            (3) Subcommittees; workgroups.--
                    (A) Establishment.--The Advisory Council may 
                establish any subcommittee or workgroup to assist the 
                Advisory Council in carrying out any duty of the 
                Advisory Council described in paragraph (4).
                    (B) Report.--Upon the request of the Advisory 
                Council, each subcommittee or workgroup established by 
                the Advisory Council under subparagraph (A) shall 
                submit to the Advisory Council a report that contains--
                            (i) a description of each recommendation of 
                        the subcommittee or workgroup; and
                            (ii) any advice requested by the Advisory 
                        Council with respect to any duty of the 
                        Advisory Council.
            (4) Duties.--The Advisory Council shall provide independent 
        advice and recommendations to the Administrator and the 
        Secretary with respect to--
                    (A) awarding grants through the Just Energy 
                Transition Fund to maximize progress toward a 
                transition to a clean energy economy while maximizing 
                benefits for environmental justice communities, 
                including by prioritizing applications that will direct 
                funds to support entities that have urgently and 
                expeditiously pursued priorities that are aligned with 
                the projects and programs described in subsection 
                (b)(1) and (2); and
                    (B) measuring and evaluating the success of grants 
                and subgrants awarded through the Just Energy 
                Transition Fund.
            (5) Meetings.--
                    (A) Frequency.--
                            (i) In general.--Subject to clause (ii), 
                        the Advisory Council shall meet biannually.
                            (ii) Authority of administrator.--The 
                        Administrator may require the Advisory Council 
                        to conduct additional meetings if the 
                        Administrator determines that the conduct of 
                        any additional meetings is necessary.
                    (B) Public participation.--
                            (i) In general.--Subject to clause (ii), 
                        each meeting of the Advisory Council shall be 
                        open to the public to provide the public an 
                        opportunity--
                                    (I) to submit comments to the 
                                Advisory Council; and
                                    (II) to appear before the Advisory 
                                Council.
                            (ii) Authority of administrator.--The 
                        Administrator may close any meeting, or portion 
                        of any meeting, of the Advisory Council to the 
                        public.
            (6) FACA.--The Federal Advisory Committee Act (5 U.S.C. 
        App.) shall apply to the Advisory Council.
            (7) Travel expenses.--The Administrator may provide to any 
        member of the Advisory Council travel expenses, including per 
        diem in lieu of subsistence, at rates authorized for an 
        employee of an agency under subchapter I of chapter 57 of title 
        5, United States Code, while away from the home or regular 
        place of business of the member in the performance of the 
        duties of the Advisory Council.
    (f) Definitions.--In this section:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Advisory council.--The term ``Advisory Council'' means 
        the Just Energy Transition Fund Advisory Council established 
        under subsection (e) of this section.
            (3) Secretary.--The term ``Secretary'' means the Secretary 
        of Labor.
            (4) State.--The term ``State'' means each of the 50 States 
        and the District of Columbia.
            (5) Territory.--The term ``territory'' means the United 
        States Virgin Islands, Guam, the Commonwealth of the Northern 
        Mariana Islands, American Samoa, and the Commonwealth of Puerto 
        Rico.
            (6) Tribal government.--The term ``Tribal government'' 
        means the recognized governing body of any Indian or Alaska 
        Native Tribe, band, nation, pueblo, village, community, 
        component band, or component reservation, individually 
        identified (including parenthetically) in the list published 
        most recently as of the date of enactment of this Act pursuant 
        to section 104 of the Federally Recognized Indian Tribe List 
        Act of 1994 (25 U.S.C. 5131).

SEC. 5. CONSIDERATION OF CUMULATIVE IMPACTS IN POWER PLANT PERMITTING.

    (a) Permits Generally.--
            (1) Regulations.--Section 502(b) of the Clean Air Act (42 
        U.S.C. 7661a(b)) is amended by adding after paragraph (10) the 
        following:
            ``(11) A requirement for performing cumulative impacts 
        analysis in accordance with subsection (j), if applicable.''.
            (2) Cumulative impacts analysis.--Section 502 of the Clean 
        Air Act (42 U.S.C. 7661a) is amended by adding at the end the 
        following:
    ``(j) Cumulative Impacts Analysis.--
            ``(1) In general.--
                    ``(A) Permit requirement.--Whenever an applicant 
                seeks a permit or renewal of a permit for a fossil 
                fuel-fired power plant, the permitting authority shall 
                require such applicant to utilize a neutral third-party 
                assessor to perform, in consultation with a community 
                intervenor, an analysis of--
                            ``(i) the cumulative impacts of pollution, 
                        including the combined past, present, and 
                        reasonably anticipated future emissions, from 
                        all stationary or mobile sources, affecting the 
                        area within five miles of the fossil fuel-fired 
                        power plant proposed to be permitted;
                            ``(ii) for each census block group or 
                        Tribal census block group (as those terms are 
                        defined by the Director of the Bureau of the 
                        Census) located in, or adjacent to, such area, 
                        the cumulative impacts of pollution, including 
                        the combined past, present, and reasonably 
                        anticipated future emissions, from all 
                        stationary or mobile sources; and
                            ``(iii) alternative projects sourced with 
                        air pollution-free renewable energy.
                    ``(B) Additional requirement.--One year after this 
                section takes effect and at least every five years 
                thereafter, the permitting authority must ensure that a 
                fossil fuel-fired power plant undergoes a cumulative 
                impacts analysis as described by this subsection if the 
                fossil fuel-fired power plant is--
                            ``(i) located, or proposed to be located, 
                        within one mile of a major source; and
                            ``(ii) not subject to permitting 
                        requirements pursuant to this title.
                    ``(C) Considerations.--A cumulative impacts 
                analysis under subparagraph (A) shall include 
                consideration of--
                            ``(i) community demographics and locations 
                        of community exposure points, including 
                        schools, day care centers, nursing homes, 
                        hospitals, health clinics, places of religious 
                        worship, parks, playgrounds, and community 
                        centers;
                            ``(ii) air quality and any potential 
                        effects on that air quality of emissions of air 
                        pollutants from the fossil fuel-fired power 
                        plant proposed to be permitted, including in 
                        combination with existing sources of 
                        pollutants;
                            ``(iii) the potential effects on soil 
                        quality and water quality of emissions of lead 
                        and other air pollutants that could contaminate 
                        soil or water from the fossil fuel-fired power 
                        plant proposed to be permitted, including in 
                        combination with existing sources of 
                        pollutants;
                            ``(iv) public health and any potential 
                        effects on public health from the emissions of 
                        pollutants from the fossil fuel-fired power 
                        plant proposed to be permitted, including in 
                        combination with existing sources of 
                        pollutants;
                            ``(v) the potential adverse impacts on 
                        health and well-being of residents of impacted 
                        environmental justice communities and 
                        populations with heightened vulnerability to 
                        pollution and associated health risks, which 
                        may be due to socioeconomic characteristics 
                        including housing insecurity, barriers to 
                        receive quality healthcare or afford health 
                        insurance, energy cost burdens that limit use 
                        of heat and air conditioning, long-term impacts 
                        of siting polluting sources in environmental 
                        justice communities, and public disinvestment 
                        and redlining;
                            ``(vi) the potential effects of any 
                        proposed action on environmental justice 
                        communities, including if the action causes or 
                        exacerbates a disproportionate or inequitable 
                        burden on the environmental justice community; 
                        and
                            ``(vii) shall be based on an analysis of 
                        data that accurately describes the potential 
                        cumulative impacts of the proposed action, and 
                        may include a supplemental qualitative 
                        analysis.
                    ``(D) Public engagement and procedural justice 
                process.--The cumulative impacts analysis under 
                subparagraph (A) shall include a public engagement and 
                procedural justice process, to include--
                            ``(i) the active and inclusive solicitation 
                        and receipt of, and to the greatest extent 
                        practicable, action to address, input and 
                        feedback from residents of impacted 
                        environmental justice communities and other 
                        impacted communities, to be documented and 
                        provided to the permitting authority in the 
                        final cumulative impacts analysis;
                            ``(ii) documentation and investigation of 
                        claims brought by residents of impacted 
                        environmental justice communities and impacted 
                        communities, including the applicant's proposed 
                        or agreed-upon mitigations, whether and how 
                        each claim was addressed, and documentation of 
                        the satisfaction or dissatisfaction of such 
                        residents with the investigation of claims and 
                        corresponding responses, if any;
                            ``(iii) advanced notification to residents 
                        of impacted environmental justice communities 
                        and other impacted communities through various 
                        means including but not limited to written 
                        notification, local news advertisements, and 
                        canvassers;
                            ``(iv) multiple opportunities for residents 
                        of impacted environmental justice communities 
                        and other impacted communities to participate;
                            ``(v) multiple media and formats for 
                        participation, including in-person and remote 
                        options, which shall include large and small 
                        group settings, mail-in feedback opportunities, 
                        and other such avenues to ensure that health, 
                        socioeconomics, lack of technological 
                        resources, and settings that are unwelcoming or 
                        unfamiliar to residents of impacted 
                        environmental justice communities are not 
                        barriers to participation;
                            ``(vi) transmission of a preliminary 
                        cumulative impacts analysis at least 30 days in 
                        advance of any public comment period or public 
                        comment event to--
                                    ``(I) the permitting authority for 
                                online publication;
                                    ``(II) community groups and 
                                community representatives of impacted 
                                environmental justice communities and 
                                other impacted communities; and
                                    ``(III) to a reasonable extent, the 
                                residents of impacted environmental 
                                justice communities and other impacted 
                                communities; and
                            ``(vii) in instances in which a resident 
                        participating in the process outlined in this 
                        paragraph stands to benefit, financially or 
                        otherwise, from the permit under consideration, 
                        disclosure of such benefit in the final 
                        cumulative impacts analysis.
            ``(2) Prohibition.--Except as provided in paragraph (3), a 
        permitting authority shall not grant a permit or renewal or 
        allow operation of a fossil fuel-fired power plant unless the 
        cumulative impacts analysis under paragraph (1) indicates a 
        reasonable certainty that such permit, renewal, or operation 
        will result in no harm to the health of the general population, 
        or to any potentially exposed or susceptible subpopulation, 
        including environmental justice communities, of a census block 
        group or Tribal census block group described in paragraph 
        (1)(A), and the public engagement and procedural justice 
        process described in paragraph (1)(C) is fulfilled.
            ``(3) Critical facilities exemption.--A fossil fuel-fired 
        power plant that is a boiler serving a critical facility may 
        only be denied a permit or be otherwise prohibited from 
        operation if the cumulative impact analysis under paragraph (1) 
        indicates a certainty that the permit or renewal will result in 
        harm to the health of the general population, or to any 
        potentially exposed or susceptible subpopulation, including 
        environmental justice communities, of a census block group or 
        Tribal census block group described in paragraph (1)(A), and 
        the alternative is deemed to be of reasonable cost.''.
    (b) Preconstruction Permits.--Section 165 of the Clean Air Act (42 
U.S.C. 7475) is amended by adding at the end the following:
    ``(f) Cumulative Impacts.--
            ``(1) In general.--
                    ``(A) Requirement.--Whenever an applicant seeks a 
                permit under this section or renewal of such a permit 
                for a fossil fuel-fired power plant within one mile of 
                a fossil fuel-fired power plant or a major source (as 
                defined in section 112), the permitting authority shall 
                require such applicant to perform an analysis of the 
                cumulative impacts for each census block group or 
                Tribal census block group (as those terms are defined 
                by the Director of the Bureau of the Census) located 
                in, or immediately adjacent to, the area in which the 
                fossil fuel-fired power plant to be permitted is, or is 
                proposed to be, located.
                    ``(B) Applicability of certain provisions.--The 
                provisions of subparagraphs (B) and (C) of section 
                502(j)(1) shall apply to any cumulative impacts 
                analysis performed under this subsection to the same 
                extent and in the same manner as such provisions apply 
                to a cumulative impacts analysis performed under such 
                section 502(j)(1).
            ``(2) Prohibition.--A permitting authority shall not grant 
        a permit or renewal described in paragraph (1)(A) unless the 
        cumulative impacts analysis under paragraph (1) indicates a 
        reasonable certainty that the permit or renewal will result in 
        no harm to the health of the general population, or to any 
        potentially exposed or susceptible subpopulation, including 
        environmental justice communities, of a census block group or 
        Tribal census block group described in paragraph (1)(A).''.
    (c) Transitional Provision.--Section 165(f) and section 502(j) of 
the Clean Air Act (as added by this section) shall apply with respect 
to a fossil fuel-fired power plant for which, on or before the date of 
enactment of this Act, a permit has been issued pursuant to section 165 
or title V of the Clean Air Act (42 U.S.C. 7475, 7661 et seq.), but for 
which construction has not commenced as of such date.
                                 <all>