CONGRESSWOMAN ELISE STEFANIK
On Thursday, March 6, 2014, the House will begin consideration of H.R. 2641, the Responsibly And Professionally Invigorating Development (RAPID) Act of 2013, under a rule. H.R. 2641 was introduced on July 10, 2013 by Rep. Tom Marino (R-PA) and was referred to the House Judiciary and Natural Resources Committees. The bill was marked up by the Judiciary Committee on July 31, 2013 and was ordered reported by a vote of 18-9.
 Committee Report 113-363, Part 1.
H.R. 2641 amends the Administrative Procedure Act (APA) to streamline the federal permitting process for construction projects. The bill creates a framework to increase efficiency and enhance coordination among agencies in the environmental review process. Specifically, H.R. 2641 allows a project sponsor, at the request of the “lead agency,” to prepare environmental documents required by NEPA. The bill requires that only one environmental impact statement (EIS) and one environmental assessment (EA) be prepared under NEPA for a project, to be used by all agencies involved. H.R. 2641 allows the lead agency to adopt an environmental study that has already been prepared under a state law that is substantially equivalent to NEPA. H.R. 2641 also allows the lead agency to adopt an environmental document that has been prepared for a similar nearby project within the precending five years.
H.R. 2641 requires the lead agency to identify, as early as possible, agencies that have an interest in the project—including state, local, and tribal officials. The lead agency must invite them to become “participating agencies” in the environmental review process. H.R. 2641 requires the lead agency and participating agencies to begin the scoping process as early as possible, and tasks the lead agency with identifying the range of alternatives to be considered. Alternatives should be considered only if they are “technically and economically feasible” for the project sponsor to undertake.
H.R. 2641 requires the lead agency to establish a schedule for completing the environmental review within the prescribed timeframe. The lead agency must not respond to or include documents submitted by participating agencies outside of the prescribed time frame. The bill sets reasonable deadlines to complete the environmental review. It also sets reasonable deadlines for agencies making permitting decisions; however, these do not begin to run until all relevant environmental and other agency reviews are complete.
H.R. 2641 requires the lead agency to work with participating agencies to identify and resolve issues that could delay completion of the environmental review process or result in a denial of approval. Agencies must notify project sponsors of such issues as early as practicable and must work with them to address these issues. If an issue cannot be resolved, the Council on Environmental Quality (CEQ) retains traditional authority to mediate the dispute.
H.R. 2641 requires each agency to report annually to Congress on its compliance with NEPA. H.R. 2641 limits legal challenges to an agency’s action under NEPA only to persons who previously commented on the environmental review document. All claims must be brought within 180 days of the publication of notice that a permit, license, or approval is final. H.R. 2641 requires the CEQ to issue implementing regulations within 180 days of enactment, and requires agencies to amend their regulations within 120 days thereafter.
 The federal agency preparing or responsible for preparing the environmental document.
 That document is deemed to satisfy the lead agency’s obligation under NEPA to prepare and EIS or EA.
 Agencies that do not respond within 30 days are deemed to have declined. An agency that declines is precluded from participating in the environmental review or taking measure to oppose a permit, license, or approval related to the project. Participating agencies must contribute to the environmental document concurrently, and must limit their input only to their respective areas of jurisdiction.
 The schedule must consider factors such as the responsibilities of participating agencies, resources available to them, the overall size and complexity of the project, and the project’s overall cost.
The National Environmental Policy Act of 1969 (NEPA) “declared a national policy to protect the environment and created a Council on Environmental Quality (CEQ) in the Executive Office of the President. To implement the national policy, NEPA required that a detailed statement of environmental impacts be prepared for all major federal actions significantly affecting the environment. The ‘detailed statement’ would ultimately be referred to as an environmental impact statement (EIS).” “As it has been implemented, most agencies use NEPA as an ‘umbrella’ statute. As such, NEPA forms a framework to coordinate or demonstrate compliance with any study, review, or consultation required by other environmental laws.” To comply with NEPA, agencies must often engage in lengthy, cumbersome decision-making processes. Delays are attributed both to the length of time it takes to prepare the documents and to litigation challenging the documents’ adequacy.
Reports and congressional testimony indicate that the average time needed to prepare an EIS has increased dramatically over time. “A recent study found that the average length of time to prepare an [EIS] is 3.4 years and gets longer each year, making the problem worse and worse.” According to one expert, “[T]he Congress and President of 1969 never intended that an [EIS] process—a statement, mind you—would devolve over time into a multiyear incredibly arcane thicket of rules, huge reports, and constant court fights in which any project of importance to the Nation or a State that has some kind of Federal hook attached would likely be delayed.” “[W]hen Congress was debating the issue, they were talking about time frames like 90 days.”
A number of the concepts contained in H.R. 2641 for streamlining the NEPA process are modeled on existing law and have proven effective in other contexts. Additionally, several were recommended by other permitting reform efforts (e.g. the NEPA Task Force, which was created by the House Natural Resources Committee, and the President’s Council on Jobs and Competitiveness). In March of 2012, the CEQ issued a memorandum to federal agencies on improving the process for efficient and timely reviews under NEPA. The RAPID Act, in a number of ways, codifies the recommendations contained in the CEQ memo.
 Linda Luther, The National Environmental Policy Act (NEPA): Background and Implementation, Congressional Research Service (Jan. 10, 2011) at Summary. “The environmental review required by NEPA typically causes agencies to produce one of three documents: a categorical exclusion (CE); an environmental assessment (EA); or, an environmental impact statement (EIS).” Committee Report at 3.
 CRS Report at Summary.
 See generally Committee Report at 5-6.
 Id. at 2.
 See, e.g., Committee Report at 7 (discussing policies that streamlined federal highway and transportation programs).
According to CBO estimates, implementing H.R. 2641 “would cost $5 million over the next five years, assuming the availability of appropriated funds.” Enacting the bill would not affect direct spending or revenues.
1) Rep. Jackson Lee (D-TX) Amendment #4 – Amendment strikes deemed approved language for any project for which an agency does not meet the deadlines contained in the bill.
2) Rep. McKinley (R-WV) Amendment #5 – Amendment prohibits agencies under this legislation to take into account the “social cost of carbon” from the “Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 from May 2013 or November 2013.
3) Reps. Webster (R-FL) and Rigell (R-VA) Amendment #1 – Amendment provides for projects that are under environmental review at the time of enactment to be completed within the deadlines that the underlying bill outlines.
4) Rep. Nadler (D-NY) Amendment #3 – Amendment exempts from the bill any construction project for a nuclear facility planned in an area designated as an earthquake fault zone.
5) Rep. Johnson (D-GA) Amendment #2 – Amendment clarifies that nothing in the bill will change or limit any law or regulation allowing for public comment or participation in an agency decision making process.
For questions or further information contact the GOP Conference at 5-5107.