[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. ____, ``BUILDING UNITED STATES.
INFRASTRUCTURE THROUGH
LIMITED DELAYS AND EFFICIENT REVIEWS ACT OF 2023''
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Tuesday, February 28, 2023
__________
Serial No. 118-4
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
51-381 PDF WASHINGTON : 2023
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COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
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CONTENTS
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Page
Hearing held on Tuesday, February 28, 2023....................... 1
Statement of Members:
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 2
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Graves, Hon. Garret, a Representative in Congress from the
State of Louisiana......................................... 5
Statement of Witnesses:
Carr, John, Vice President, Dairyland Power Cooperative, La
Crosse, Wisconsin.......................................... 9
Prepared statement of.................................... 10
Veerkamp, Brian, President, Board of Directors, El Dorado
Irrigation District, Placerville, California............... 14
Prepared statement of.................................... 16
Beard, John, Jr., Founder, President and Executive Director,
Port Arthur Community Action Network, Port Arthur, Texas... 18
Prepared statement of.................................... 20
Pugh, Keith, PE, PWLF, President, American Public Works
Association, Asheville, North Carolina..................... 25
Prepared statement of.................................... 27
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Westerman
CEQ Chair Brenda Mallory, Invitation to testify before
the HNR at today's hearing, dated February 14, 2023.... 8
National Association of Manufacturers, Letter of support
dated February 22, 2023................................ 90
Submission for the Record by Representative McClintock
Report by UCLA and Univ. of Chicago scientists titled
``Up in smoke: California's greenhouse gas reductions
could be wiped out by 2020 wildfires'' (2022).......... 92
Submission for the Record by Representative Stauber
USDA Rural Utilities Service, Administrator Berke, Letter
dated February 10, 2023................................ 64
Submissions for the Record by Representative Boebert
Photos for the record taken in the Congo................. 97
Photos for the record taken in East Palestine, Ohio...... 99
Submission for the Record by Representative Grijalva
Outdoor Alliance, Letter of opposition dated March 6,
2023................................................... 100
Submissions for the Record by Representative Huffman
New York Times article titled ``Wind and Solar Energy
Projects Risk Overwhelming America's Antiquated
Electrical Grids'' from February 23, 2023.............. 33
Environmental Law Reporter article titled ``Playing the
Long Game: Expediting Permitting without Compromising
Protections'' dated Nov. 2022.......................... 38
Biden--Executive Order on the Implementation of the
Energy and Infrastructure Provisions of the Inflation
Reduction Act of 2022.................................. 50
LEGISLATIVE HEARING ON H.R. ____, TO AMEND THE NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969 TO CLARIFY AMBIGUOUS PROVISIONS, REFLECT MODERN
TECHNOLOGIES, OPTIMIZE INTERAGENCY COORDINATION, AND FACILITATE A MORE
EFFICIENT, EFFECTIVE, AND TIMELY ENVIRONMENTAL REVIEW PROCESS,
``BUILDING UNITED STATES INFRASTRUCTURE THROUGH LIMITED DELAYS AND
EFFICIENT REVIEWS ACT OF 2023''; ``BUILDER ACT OF 2023''
----------
Tuesday, February 28, 2023
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The Committee met, pursuant to notice, at 2:16 p.m., Room
1324, Longworth House Office Building, Hon. Bruce Westerman
[Chairman of the Committee] presiding.
Present: Representatives Westerman, Lamborn, McClintock,
Gosar, Graves, LaMalfa, Gonzalez-Colon, Fulcher, Stauber,
Curtis, Tiffany, Boebert, Bentz, Moylan, Collins, Luna, Duarte,
Hageman; Grijalva, Huffman, Levin, Porter, Leger Fernandez,
Peltola, Hoyle, Kamlager-Dove, Magaziner, and Lee.
Also present: Representative Van Orden.
The Chairman. The Committee will come to order.
Without objection, the Chair is authorized to declare a
recess of the Committee at any time.
The Committee is meeting today to hear testimony on the
BUILDER Act of 2023, offered by Representative Garret Graves of
Louisiana.
I ask unanimous consent that the gentleman from Wisconsin,
Mr. Van Orden, be allowed to sit with the Committee and
participate in today's hearing from the dais.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I therefore ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted in accordance with the Committee Rule
3(b).
Without objection, so ordered.
I now recognize myself for an opening statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
The Chairman. Thank you all for joining us here today to
talk about the need for permitting reform. This is a very
pressing issue that affects every aspect of our society.
And I am guessing that, if you polled a random sample of
our constituents, many of them wouldn't be able to define
permitting reform, or wouldn't even know what the National
Environmental Policy Act, often referred to as NEPA, is. But I
do know that every single person in the United States,
regardless of their zip code, has relied on infrastructure,
energy, or other projects that underwent NEPA reviews. And all
too often I know that Americans have faced bureaucratic
nightmares and decades-long delays in attempts to build roads
and bridges in their communities or access critical mineral
resources.
The Mineral Leasing Act requires BLM issue onshore drilling
permits within 30 days, but the agency has a backlog of more
than 5,000 permits pending, due to prolonged analysis under
NEPA. The Cardinal Hickory Creek Electric Transmission Line
Project is one of 22 shovel-ready transmission projects
identified as projects that could create 1.2 million jobs and
increase solar and wind generation by 50 percent. The project
has been going through review since 2014, and remains halted
due to a wildlife refuge lawsuit, despite the fact that the
project would actually reduce the number of transmission lines
and structures in the refuge by half.
Energy isn't the only affected sector. The Sites Reservoir
is a proposed offstream water storage facility northwest of
Sacramento, and has been under continuous review since 2000, 23
years of continuous review.
NEPA requirements have been a leading factor in the
constant delays, all while Western drought grows increasingly
worse. That is why we need to change, and we need it now. NEPA
has been a valuable tool, but it is not working for our 21st
century needs. It is time to update and modernize it, making it
a powerful force for good, rather than a weapon by which
environmental groups block projects.
So, first we have to define our terms. What do we mean when
we say permitting reform? The current permitting process is
filled with repetitive, duplicative assessments and lengthy
processing times, making it difficult to plan and build
projects efficiently. We want to amend NEPA, not gut it--or
worse yet, eradicate it--and make a law that provides robust
environmental protections without bogging down projects in
rounds of red tape and litigation.
The simple fact is we cannot re-establish energy
independence or even meet President Biden's clean energy and
emission goals without reform. Every kind of energy source,
from oil and gas, to minerals, to wind and solar, to nuclear,
falls prey to NEPA.
Take the Inflation Reduction Act as the most recent
example. This bill funneled a staggering $369 billion in
funding over 10 years from everything from heat pumps, to
battery storage, to hydrogen and offshore wind. Most of it will
not be possible without the ability to permit and build
efficiently.
It is baffling that many of my Democratic colleagues seem
content to let the status quo choke out American innovation and
ingenuity, including the very renewable projects they claim to
support. That is why the BUILDER Act is a necessary component
of any permitting reform discussion. It clarifies and updates
complicated terms, eliminates repetitive processes, and imposes
reasonable timelines to prevent reviews from dragging on.
I ask any Member on the Democratic dais, if not NEPA
reform, then what?
How will we achieve a single one of your clean energy
goals--I will say our clean energy goals--if companies can't
get the permits to build the necessary infrastructure?
How will we get Americans back to work if they are stuck in
limbo waiting through endless reviews and litigation?
We invited the Council of Environmental Quality to testify
before us today and answer these very questions. The empty
chair you see at the witness table tells you everything you
need to know about how willing this Administration is to back
their talking points with facts and science.
People act like we have no choice but to shoulder these
burdens, slowing down our development while China leaps us in
energy production. I don't believe that for a second. I am
proud to support these common-sense, science-based proposals.
America has a bright future ahead, if we will just get out of
our own way.
And I want to thank the gentleman from Louisiana for all
the hard work that he has put into this bill. I think he would
be the first to tell you it is not finished yet. We need to
have these hearings. We need to have input. And this needs to
be a bipartisan effort for the good of the country.
I challenge us to work together to come to some kind of
reform, so that we can actually get things done.
With that I want to recognize the Ranking Minority Member,
Mr. Grijalva, for any statement he may wish to make.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. It feels a little
like deja vu. A few weeks ago, we sat in this room while my
colleagues across the aisle spent hours scapegoating our
environmental review processes, namely those under the National
Environmental Policy Act, or NEPA, for every single issue or
delay the fossil fuel industry has ever had. Then, this
morning, our Energy and Mineral Resources Subcommittee held a
hearing on two bills that would act on that scapegoating by
gutting NEPA and the environmental review, under other key
laws. And now, we are here again, with yet another bill taking
aim at NEPA and what is best for the public's interest is
secondary, if that.
And as I have in our other hearings, I feel obligated to
point out how irresponsible it is to cut environmental review
while we are in the midst of the greatest environmental crisis
of our time.
I will also point out again that it is especially,
especially stark to cut environmental reviews for the fossil
fuel industry, the biggest culprit responsible for the climate
crisis that we are in.
And, finally, I will point out again that poor communities,
communities of color, Indigenous people who have been bulldozed
and poisoned for decades by fossil fuel companies, companies
that have used their communities as dumping grounds, are the
same ones who are being hit hardest by climate change. And as
many times as I make these points, it doesn't change one key
fact.
Republicans and their industry allies don't like NEPA, and
they will push every bill they can to try to hobble its
effectiveness. The extreme GOP platform has shifted to one that
vilifies the Federal Government and its laws so they can put
private industry, no matter how dirty, reckless, or greedy, up
on a pedestal above the needs of the general public. That means
NEPA will always be the nemesis, no matter how non-sensical it
is.
If you need more convincing, let's look at some facts. As
we will hear today, Republicans will cite a handful of delayed
projects out of the tens of thousands of projects and actions
reviewed under NEPA each year to say we should eliminate
environmental protections they want to eliminate anyway. What
you won't hear is how much of it, about the actual causes of
the delays during the environmental reviews. Well, fortunately,
experts have already researched the main causes of project
delays, when they do occur.
The first one is lack of capacity at Federal agencies, lack
of staff, expertise, or budgets for environmental reviews, at
under-funded Federal agencies. This is, of course, largely due
to the Republican campaigns to gut these very agencies and
those programs.
The second main cause of delay is poor market conditions or
other issues with the project's operator. For example, 9 out of
the 10 years over the last decade, the Bureau of Land
Management has spent more time waiting for oil and gas
operators to submit information than it spent reviewing
drilling permit applications. Market conditions may have led
operators not to prioritize certain applications.
And the third main cause of delay is related to other laws,
including state and local laws.
You probably noticed that not one of these causes is NEPA.
I would also like to point out that the Democrats on the
Committee authored provisions in the Inflation Reduction Act to
provide more than $1 billion to staff up and train Federal
agencies' offices to carry out efficient and effective
environmental reviews. This will address one of the main causes
of project delay I just listed. Not one Republican voted for
that Inflation Reduction Act or any other legislation.
So, you could imagine my skepticism when I hear about the
need to accelerate environmental reviews through the so-called
permitting reform, and see bills that allow the fossil fuel
industry to pollute when and where it wants, without having to
tell the public too much about it. Instead, these bills will be
a detriment to the environment, our communities, and the
future. The results of deregulation, they are not more poignant
than what happened in East Palestine and the derailment. That
happened, cause and effect, after the former administration,
the Trump administration, effectively de-regulated some of the
safety regulations that existed for railroads.
With that, Mr. Chairman, I yield back.
The Chairman. Thank you, Ranking Member Grijalva. I am sure
we will have some interesting discussions today. Maybe we can
find out why billions of dollars were poured into ineffective
agencies and the results haven't changed.
I will now introduce our first panel, which consists of
Representative Graves of Louisiana, to provide testimony on his
legislation before us today.
Representative Graves, you are recognized for 5 minutes.
STATEMENT OF THE HON. GARRET GRAVES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Mr. Graves. Thank you, Mr. Chairman, and I want to thank
you and thank the Ranking Member for opening statements. I
think that each of your opening statements indicated the need
for fundamental reform to our permitting process, our
regulatory process.
Mr. Chairman, if you look at the current regulatory
process, the NEPA law, for highway projects the average
environmental review takes approximately 7 years. We have seen
instances where we have had an average of 115 lawsuits per year
filed against these NEPA reviews, the majority of which are
actually settled with no action, meaning found that the
government's actions were actually appropriate.
What we have seen, Mr. Chairman, over the last few decades,
as this NEPA law has been put in place, is that we have seen
this has become sort of a Christmas tree, all sorts of
ornaments hung on this law, looking at all sorts of things that
have absolutely nothing to do with the environment.
I think that one of the posters that Ranking Member
Grijalva put up actually makes our case probably better than
anything else, not just because it was actually mounted on a
petroleum-based product, but also because it shows that you
need to spend $1 billion, $1 billion, to actually comply with
the law, you are giving agencies $1 billion to look at
environmental impacts.
Mr. Chairman, here is the reality. The majority of projects
carried out across the United States today are done without a
NEPA review. They are done without a NEPA review. Why is that?
Because you have certain threshold criteria that triggers NEPA.
You have things like, are Federal funds involved, are Federal
resources implicated, are Federal lands involved. Those are
some of the threshold criteria that actually trigger NEPA. So,
the reality is, if you are not triggering Federal permits,
Federal resources, and you are not using Federal dollars, then
you don't carry out a NEPA analysis.
So, if that is the case, if the majority of projects being
carried out across the United States today are being done
without a NEPA analysis, and we don't see this wholesale
trashing of our environment, then why is this legislation to
streamline this law, to pull it back to the original intent and
truly focus on environmental outcomes, why is this bad?
But, Mr. Chairman, don't take my word for it. Don't.
Because I had a meeting a few months ago with Brian Deese, who
was the White House economic adviser, and with John Kerry, the
White House climate czar. We are in the meeting. John Kerry and
Brian Deese said, ``You know what? We need permitting reform,''
meaning they did, the White House did.
They went on to explain that, through ARA, the American
Rescue Act, the infrastructure bill, and through the Inflation
Reduction Act, that I will just make a little parenthetical on,
the Inflation Reduction--I know, Mr. Huffman, your favorite
quote is that John Kerry actually said that has nothing to do
with inflation--but the Inflation Reduction Act, those three
bills, they said that, cumulatively, they set aside $610
billion for this energy transition, and that they were going to
be incapable of actually delivering it without permitting and
regulatory reform.
I have to be honest, I didn't think I would be sitting here
saying, ``Listen to Brian Deese and John Kerry,'' but, Mr.
Chairman, I think they are right. I think that we need
litigation reform. I think that we need permitting reform.
And it doesn't matter if we are trying to restore coastal
wetlands and restore ecological productivity in coastal
Louisiana. It doesn't matter if we are going to try to triple
the transmission grid for this newly-designed electrical
transmission system that is going to be allowing us to send not
just electricity from conventional fuels, but also from
renewable sources like wave, and wind, and solar, and
geothermal, and other sources, nuclear. But we are going to
have to triple, triple all of the energy grid that is out there
today. We are going to have to triple it in order to
facilitate, in order to realize the ``benefits'' of this energy
transition.
The reality is that we will approximately never finish that
project. You can't implement it under these conditions. So,
projects to actually benefit the environment, like restoring
coastal Louisiana, projects that are designed to reduce
emissions, like deploying new energy sources, those are
actually thwarted by the very law that is supposed to be
protecting our environment. Think about that for just a minute.
This bill takes a common-sense approach. It doesn't block
public participation. It respects and, I think, increases the
focus on environmental outcomes. It stops frivolous lawsuits.
And at the end of the day, Mr. Chairman, most importantly, it
helps us move forward on projects that actually achieve
outcomes that are positive. Because, at the end of the day,
projects don't achieve benefits until they are actually
implemented.
So, with that, Mr. Chairman, I look forward to hearing from
the witnesses, and yield back.
The Chairman. Thank you, Mr. Graves. And thank you again
for all the work you have put into the bill, and I am sure
additional work that will continue to go into it on this very
important subject.
We will now move on to our second panel of witnesses, and
let me remind witnesses that, under Committee Rules, they must
limit their oral statements to 5 minutes, but their entire
statement will appear in the hearing record.
When you begin your testimony, please press the on button
on the microphone. We do use timing lights. When you begin, the
light will turn green. At the end of 5 minutes, the light will
turn red, and I will ask you to please complete your statement.
I will also allow all witnesses to testify before Member
questioning. I will now introduce our witnesses.
As I mentioned in my opening statement, our first witness
today was supposed to be Ms. Brenda Mallory, the Chair of the
White House Council on Environmental Quality, or CEQ. And CEQ
plays a very important role in the discussion that we are
having today. However, as you can see, nobody from CEQ has
decided to join us today. They couldn't even find an assistant
or somebody else. Maybe they all haven't come back to work yet.
Maybe they don't want to come to a public hearing. But it is
really offensive that they wouldn't even show up for a hearing
on the Committee that has jurisdiction over many of their
actions. And maybe they think they got all the money in the
last Congress, and they can just blow us off. But if anybody
from CEQ is watching, this won't be the last that you hear from
us.
Mr. Huffman. Mr. Chairman, could I make an inquiry about
that? A parliamentary inquiry about when you invited the CEQ
chair. Because the custom is 2 weeks' notice. I am just
wondering if you complied with that customary notice.
The Chairman. They were given ample time to be here.
Mr. Huffman. Did you comply with the customary 2 weeks'
notice? Because----
The Chairman. Yes, we gave them the 2 weeks. But you'd
think this would be important----
Mr. Huffman. We didn't even have a discussion draft until a
little over a week ago. So, I find it hard to imagine that you
provided them a draft of the bill.
The Chairman. Use your imagination, Mr. Huffman, as we move
on here.
This Committee would have greatly benefited from the
testimony of CEQ in this process. Instead, again, they have
chosen to ignore the invitation of our Committee, and refuse to
engage in an opportunity to educate and explain the Biden
administration's position on permitting challenges that are
impacting our nation. Maybe they don't see a challenge. Maybe
they think it is working just like it should.
They have also been ignoring legitimate congressional
oversight.
I ask unanimous consent to submit for the record a letter
we previously sent in October asking CEQ to provide a list of
their rulemakings and the specific congressional authorities
for each rule, in light of the Supreme Court decision West
Virginia v. EPA. CEQ has not responded to this request for over
3 months.
Without objection, so ordered.
[The information follows:]
U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON NATURAL RESOURCES
Washington, DC
February 14, 2023
The Honorable Brenda Mallory, Chair
Council on Environmental Quality
730 Jackson Place, NW
Washington, DC 2050
Dear Chair Mallory:
The Committee on Natural Resources will hold a legislative hearing
on the ``Building United States Infrastructure through Limited Delays
and Efficient Reviews Act'' on Tuesday, February 28, 2023, at 2:00 p.m.
in room 1324 Longworth House Office Building. I cordially invite you to
testify at this hearing.
Enclosed with this letter are the parameters regarding written and
oral testimony. Should you have any questions or need additional
information, please contact Sophia Varnasidis, Director of Legislative
Operations, Committee on Natural Resources at (202) 225-2761.
Sincerely,
Bruce Westerman,
Chairman
Enclosure
______
The Chairman. However, I am looking forward to hearing
testimony from the witnesses who did decide to join us today.
And with that, I will recognize Representative Van Orden for 30
seconds to introduce our first witness.
Mr. Van Orden. Thank you, Chairman Westerman. It is an
honor for me this afternoon to introduce one of my
constituents, Mr. John Carr. He is the Vice President of
Strategic Growth for Dairyland Power Cooperative in La Crosse,
Wisconsin. As Vice President, John leads Dairyland's Resources
Planning Division, and oversees strategic load growth, mergers,
and power supply acquisitions.
Dairyland is a critical component of Wisconsin's energy
market, providing power for a multitude of co-ops across my
district and the region at large. They are also a member of the
Midcontinent Independent Systems Operator, a transmission
service that operates critical transmission systems and
essentially dispatched market across the Midwest.
Electric co-ops are the backbone of reliable power in rural
America, especially in Wisconsin, and ensuring that these
systems are able to be upgraded in a timely and cost-efficient
manner is critical for millions of Americans.
I look forward to hearing John's testimony, and working
with you hand in hand, sir, and the rest of the Committee to
ensure that innovative energy solutions are not being upheld by
bureaucracy and unnecessary red tape, so that our co-ops can
continue to provide reliable energy that is both affordable and
as clean as possible.
I yield back.
The Chairman. I now recognize Mr. Carr for 5 minutes.
STATEMENT OF JOHN CARR, VICE PRESIDENT, DAIRYLAND POWER
COOPERATIVE, LA CROSSE, WISCONSIN
Mr. Carr. Thank you, Representative Van Orden, Chairman
Westerman, Ranking Member Grijalva, and members of the
Committee. Thank you for the opportunity to participate in this
hearing. My remarks and testimony today are on behalf of both
Dairyland and the National Rural Electric Cooperative
Association.
Electric co-ops provide reliable and affordable service to
42 million Americans, including many of your constituents. We
are currently working to meet our consumer demand by bringing
additional renewable energy and renewable supporting energy
online.
Unfortunately, the current Federal permitting process
creates delay and increases costs through inefficient reviews
and costly litigation. This is not in the best interests of
energy consumers, the economy, or the environment.
Co-ops operate at cost. That means every dollar we spend
impacts the costs our retail consumers pay for electricity. Co-
ops serve 92 percent of the country's persistent poverty
counties. So, affordability is important.
Dairyland is committed to advancing clean energy in a way
that does not sacrifice safety, reliability, or affordability.
Our energy mix was once 95 percent coal. Today, it is around 50
percent. In 2021, we retired a coal plant that powered our
region for more than 50 years. We provided skill development
programs, special retirement options, and internal placement
opportunities to lessen the impact that that closure had on our
teammates.
While we have been able to maintain the integrity of the
grid, any future coal plant closures will require us to have
other alternatives in place. For Dairyland, this includes more
renewable energy, battery storage, lower-emitting natural gas
facilities, and transmission to get renewable energy to
consumers.
To lower carbon dioxide emissions as quickly as possible
without jeopardizing grid stability, we need a permitting
process that supports a sense of urgency. Dairyland is pursuing
two projects that are key to our clean energy transition. Both
are delayed in a process that must be improved if we are to
reduce CO2 emissions in a prompt, reliable, and
affordable way.
The first project is an efficient natural gas power plant
to be built in Superior, Wisconsin called Nemadji Trail Energy
Center, or NTEC. By enabling further renewable development and
displacing higher CO2-emitting sources of power,
NTEC will reduce CO2 emissions by almost 1 million
tons per year, and it will bring stability to the grid. The
NTEC environmental review began in 2017. It featured a robust
public engagement period.
The review was completed in 2021, and the Rural Utility
Service issued a FONSI, or a Finding of No Significant Impact.
However, external groups petitioned RUS to re-evaluate the
project's climate change impacts, and that FONSI was rescinded.
A second study confirmed the plant would reduce greenhouse gas
emissions, but we are still awaiting a final determination on
an NTEC more than 5 years after the process began. Meanwhile,
reliability concerns in the Midwest have led to postponement of
previously-announced coal plant retirements by other utilities
in the region.
The second project is the Cardinal Hickory Creek
Transmission Line. This line will bring wind energy from Iowa
into Wisconsin. There are currently over 100 renewable energy
projects, depending on the construction of this line. In this
case, while the NEPA review was completed in a timely manner,
delays due to litigation have increased the cost of the
project.
We support Congress' effort to provide a pathway for more
coordinated, consistent, and timely decision-making. NEPA
modernization is necessary to advance clean energy projects
that strengthen the economy and benefit the environment. We
support placing reasonable parameters around the review
process, and limiting unnecessary litigation.
The BUILDER Act would help to ensure outdated policies are
not preventing our country from achieving its goal of reducing
carbon emissions, while also ensuring that the grid remains
safe, reliable, and affordable.
This concludes my prepared remarks, and thank you for the
opportunity to participate today.
[The prepared statement of Mr. Carr follows:]
Prepared Statement of John Carr, Vice President, Strategic Growth,
Dairyland Power Cooperative
Chairman Westerman, Ranking Member Grijalva, and members of the
Committee, thank you for the opportunity to testify today. My name is
John Carr, and I am the Vice President for Strategic Growth of
Dairyland Power Cooperative. Electric cooperatives like Dairyland play
a leading role in the ongoing transformation of the electric sector,
and often need to obtain permits or other authorizations from federal
agencies to construct and maintain electric generation, transmission,
and distribution infrastructure. I appreciate the opportunity to
testify on the ``BUILDER Act'' and offer a perspective on behalf of
both Dairyland and the National Rural Electric Cooperative Association
(NRECA).
About Dairyland Power Cooperative
Dairyland is a not-for-profit generation and transmission
cooperative headquartered in La Crosse, Wisconsin, providing
electricity to 24 distribution cooperatives and 27 municipal utilities,
who in turn provide power to more than half of a million people in
Wisconsin, Minnesota, Illinois, and Iowa. Dairyland is a critical
service provider, and we are responsible to our members, local
communities, and future generations. Our mission is to grow, innovate,
and deliver value as a premier member-driven energy cooperative through
safe, reliable, and sustainable solutions.
We are governed by a Board of Directors comprised of one
representative from each of our 24 cooperative members. Our member
cooperatives are in turn governed by locally elected boards. The
cooperative model means that every dollar we receive from our members
is directed to the operation of our projects. If excess revenue is
collected, it does not go to investors; rather, it is sent back to our
members. This model helps electric cooperatives keep rates affordable--
an important consideration, because co-ops serve 92 percent of the
country's persistent poverty counties.
Permitting Modernization is Essential to Meet Community Needs
Dairyland and other electric co-ops support the appropriate
consideration of potential environmental impacts of energy projects
during the permitting process, but the existing process impedes our
ability to deploy clean energy to meet the current and future needs of
our consumers and communities. We simply must reform the process to
enable the transition that is already underway, and to ensure it can be
done reliably and affordably for our customers.
Electric cooperatives across the country are committed to meeting
our members' changing energy demands. Since 2010, co-ops have more than
tripled their renewable capacity to more than 13 gigawatts, with
another 7 gigawatts of additional renewable capacity planned through
2026. Since 2005, co-ops have reduced their sulfur dioxide emissions by
82 percent, nitrogen oxide emissions by 68 percent, and carbon dioxide
emissions by almost 20 percent. Dairyland supports a transition to
lower carbon energy generation in a way that doesn't compromise the
safety and reliability of the grid. In 2021, we completed the
retirement of our coal-fired Genoa Station #3, which had reliably
powered the region for more than five decades. We worked closely with
the 80 impacted employees to provide skill development programs,
special retirement options, and internal placement opportunities to
assist in the transition, and we worked hand-in-hand with the community
to fulfill our commitment to maintain a presence in the area.
Our commitment to supporting local communities and the environment
is an important part of our work as a cooperative. Dairyland
collaborates with non-profit organizations and provides funding support
on initiatives and policies that benefit area residents, schools and
businesses in the communities we serve. In La Crosse, where we are
headquartered, we partner with an elementary school identified as
serving one of Wisconsin's most impoverished populations with
supportive nutrition and programming needs.
Our numerous environmental stewardship projects include the
establishment of 50 acres of pollinator habitat, fish habitat
improvements in the 2,000-acre Dairyland Reservoir near our Flambeau
Hydro Station, as well as Peregrine falcon and osprey nesting
structures. Dairyland and our member cooperatives are also national
leaders in the establishment of electric vehicle (EV) charging
infrastructure. Since 2018, Dairyland has supported the installation of
over 150 EV chargers throughout our service territory.
Dairyland's Energy Future
We were able to close the Genoa power plant while maintaining the
integrity of the grid. However, any potential future coal plant
closures would require us to have alternative generation in place. This
includes more renewable resources, battery storage, lower-emissions
natural gas facilities to firm up intermittent resources, and
transmission to get this generation from project site to load centers.
A recent long-term reliability assessment by the North American
Electric Reliability Corporation (NERC) highlights the critical need to
maintain baseload generation, particularly given increasing levels of
intermittent renewable generation.\1\
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\1\ North American Electric Reliability Corporation. 2022. 2022
Long-Term Reliability Assessment. https://www.nerc.com/pa/RAPA/ra/
Reliability%20Assessments%20DL/NERC_LTRA_ 2022.pdf
Two of Dairyland's essential projects, a combined-cycle power plant
and a regional transmission line needed to deliver renewable energy,
are prime examples of why modernization of the current permitting
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process is needed.
Nemadji Trail Energy Center
Nemadji Trail Energy Center (NTEC) is a collaborative project
involving Dairyland, Basin Electric Cooperative, and
ALLETE. NTEC will be a combined-cycle natural gas plant
capable of delivering up to 625 MW of baseload power to the
electric grid, supporting the growth of wind and other
intermittent resources. Numerous studies have shown NTEC
will help reduce emissions across the grid, reducing CO2
emissions by an average of 964,000 tons per year. This is
the equivalent of removing 190,000 internal combustion
engine cars from the road each year.
A thorough National Environmental Policy Act (NEPA) process was
conducted, beginning in September 2017 and included robust
public involvement. The U.S. Department of Agriculture
(USDA) issued an Environmental Assessment (EA) in October
2020 and a Finding of No Significant Impact (FONSI) in June
2021. Thereafter, the USDA Rural Utilities Service (RUS)
accepted a petition to rescind the FONSI and to prepare a
Supplemental EA.
RUS is committed to a procedurally sound review, but we are still
awaiting a final decision, which we hope is a re-issued
FONSI. However, even if the RUS works quickly and
diligently to permit this project, we may see the same
petitioners challenge the permit in court, which would add
further delays.
Reliability concerns in the regional grid have led two investor-
owned utilities in Wisconsin to postpone coal plant
retirements that had previously been announced. It is not
hard to see how the combination of lengthy reviews and
litigation could lead to a project like NTEC being
shelved--in our case, we need new, dispatchable clean and
lower-emission resources to enable reliable operation of
the grid.
Dairyland's participation in regional transmission line projects
serve the dual role of ensuring the continued safe delivery of
electricity while facilitating the region's transition toward low-
carbon energy resources.
Cardinal-Hickory Creek Transmission Line Project
The Cardinal-Hickory Creek (CHC) Transmission Line Project, co-
owned by Dairyland, American Transmission Co. and ITC
Midwest, is an essential 345-kV interconnection to our
region's renewable energy developments. The new
transmission line will reduce energy costs, improve the
reliability and flexibility of the region's transmission
system, and deliver wind energy from the upper Great Plains
to southern Wisconsin.
Federal involvement in the project is small, but requires
approvals and permits from the U.S. Fish and Wildlife
Service, the Army Corps of Engineers, and USDA RUS, from
which Dairyland intends to seek financing for its 9 percent
ownership interest in the project. The 102-mile route from
Dubuque County, Iowa, to Dane County, Wisconsin, crosses
mostly private and non-federal land, except for
approximately 1.3 miles in the Upper Mississippi National
Wildlife and Fish Refuge, which has led to costly delays
and permitting challenges.
Federal scoping for this project began in October 2016. Following
several years of environmental review and extensive
opportunities for public involvement, USDA issued the Final
Environmental Impact Statement (EIS) in October 2019 and
signed the Record of Decision (ROD) in January 2020. The
federal government approved the refuge portion, in part,
because the CHC line would replace two other existing
transmission lines in the refuge, thereby reducing the
number of structures in the refuge.
Subsequent legal claims were raised alleging that the EIS and ROD
violated NEPA. In March 2022, a Federal District Court
vacated and remanded the EIS and ROD, based on those
claims. It found that the new transmission line through the
refuge was incompatible with the purpose of the refuge.
USDA has appealed the decision, and Dairyland and the other
project owners are intervenors in the case.
Today, this line is needed more than ever. Its primary benefits
continue to include economic savings for energy consumers,
support for renewable energy projects and improvement of
electric system reliability. As coal-fired plants are
retired and the demand for renewable generation increases,
energy needs a pathway to travel long distances.
There are currently over 100 renewable generation projects
depending upon the construction of the Cardinal-Hickory
Creek transmission line. These projects will generate
enough electricity to power millions of homes with clean
energy. But only if the line can be completed.
Further afield, Dairyland continues to explore cutting edge carbon
free energy generation resources. Nuclear will be the backbone of a
low-carbon future. If you are for carbon reduction, nuclear needs to be
part of the conversation. Nuclear is zero emissions, high reliability,
well-regulated, and has an outstanding industry safety record.
Small Modular Rectors (SMRs)
We recently signed a memorandum of understanding (MOU) with
NuScale Power to evaluate the potential deployment of
carbon free power from small modular reactors. Under this
agreement, Dairyland can explore this technology and
evaluate whether it might be a viable long-term alternative
to provide our members with safe, reliable and cost-
effective electricity in a lower carbon future.
Part of our evaluation of this exciting project will be focused
on the Nuclear Regulatory Commission's review and approval
process for advanced reactors, like SMRs, and whether we
can count on the federal government to fulfill its
permitting responsibilities on a project like this in a
timely way at reasonable cost. Building and bringing such a
plant into operation in the Midwest will take at least 10
to 15 years.
The BUILDER Act and Other Reforms are a Step in the Right Direction
The complicated federal permitting process under NEPA becomes even
more challenging when multiple federal agencies are involved, and even
well-researched and thorough federal reviews face the constant threat
of litigation. As Dairyland has experienced firsthand, lengthy NEPA
reviews and litigation delay the completion of critical infrastructure
projects, require significantly more time and resources, and have a
direct negative impact on communities served by these projects.
Dairyland and electric co-ops across the country support solutions
that provide a pathway for more coordinated, consistent, and timely
agency decision-making. NEPA modernization is especially necessary to
advance electric infrastructure project development in a manner that
strengthens our economy and enhances environmental stewardship. We
appreciate the work the House Natural Resources Committee is pursuing
this Congress, under the leadership of Chairman Westerman and Ranking
Member Grijalva, to identify commonsense and durable improvements that
can be made to NEPA and other permitting processes.
Based on experiences like Dairyland's, our national trade group
NRECA has identified several NEPA modernization recommendations that we
encourage the Committee to consider. Among those areas that would
benefit from changes to modernize the permitting process, while
maintaining the integrity of a thorough and proper review:
Establish firm parameters for environmental reviews.
Originally, EISs were expected to take 12 months or less.
Now, the average time to complete an EIS and issue a
decision for a project is 4.5 years; and one-quarter of
EISs take more than six years.\2\ In addition, EISs on
average are 661 pages in length, not including
appendices.\3\ Congress should mandate timelines of two
years for EISs and one year for EAs, while providing
agencies with authority to extend those deadlines in
writing with the input of the project proponent, and
mandate page limits so that environmental documents are
concise, readable, and focused on relevant issues.
---------------------------------------------------------------------------
\2\ Council on Environmental Quality, June 12, 2020, Environmental
Impact Statements Timelines (2010-2018), https://ceq.doe.gov/docs/nepa-
practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf
\3\ Council on Environmental Quality, June 12, 2020, Length of
Environmental Impact Statements (2013-2018), https://ceq.doe.gov/docs/
nepa-practice/CEQ_EIS_Length_Report_2020-6-12.pdf
Promote greater applicant involvement in the NEPA process.
Greater applicant involvement in developing environmental
documents will provide agencies with the information they
need to facilitate more efficient and effective reviews and
make timely decisions. Congress should allow project
sponsors to work in a coordinated way with agencies in the
development of environmental impact analyses, while
maintaining agency authority over final NEPA documents and
decisions. It should also limit agency recommendations on
project modifications to those that are technically and
economically feasible, are within the agency's
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jurisdiction, and meet the needs of the applicant.
Ensure more efficient reviews for projects with minimal
environmental impacts. NEPA regulations and procedures
allow projects and activities that do not have significant
environmental effects to be reviewed efficiently under a
categorical exclusion (CE) instead of requiring an EA or
EIS. Having an efficient and expedited process for
reviewing these types of projects is beneficial for
communities and allows agencies to better focus their time
and resources. Individual agencies establish CEs through a
notice and comment process which results in inconsistent
CEs across agencies and inefficient reviews. Congress
should provide government-wide authority for an agency to
use another agency's CE if the proposed action fits within
the CE to ensure its appropriate use.
Limit unnecessary litigation of NEPA reviews. According to
the U.S. Department of Justice, NEPA is one of the most
frequently litigated environmental statutes. The constant
threat of litigation creates excessive cost and agency
documentation and needless delay in the permitting process.
Congress should establish reasonable time limits for filing
lawsuits after a final agency action. It should also
require that any entity filing a lawsuit over a NEPA review
has already sufficiently raised their concerns during any
public comment period to put the agency on notice of the
issues and allow the agency to cure any potential
deficiencies in their documents prior to any litigation.
The BUILDER Act, introduced by Representative Garret Graves,
includes many provisions that would address these priority
recommendations and would greatly improve the NEPA process. As Congress
works toward bipartisan solutions and legislation to modernize the
federal permitting process, the BUILDER Act should be a central part of
those discussions.
We all benefit from the investments prior generations made in our
nation's electric system. It is now our turn to build on those efforts
for future generations. Meeting current and future energy needs is a
major challenge. Rising to meet this challenge will require
collaboration, creativity, and flexibility. Dairyland and our electric
co-op brethren are ready to work with all of you and your colleagues in
Congress and your federal agency partners to meet these needs.
Thank you for the opportunity to testify today and for your
attention to the critical issues facing our nation. I look forward to
working with all of you.
______
The Chairman. I thank the witness, and I now recognize Mr.
McClintock to introduce the next witness.
Mr. McClintock. Thank you, Mr. Chairman. I am pleased to
introduce Brian Veerkamp, a 5th-generation resident of El
Dorado County. He retired in 2011, after 30-plus years in
public emergency services that began with the position as a
volunteer firefighter and culminated in his last position as
fire chief of the El Dorado Hills Fire Department.
In 2012, Brian was elected to the El Dorado County Board of
Supervisors, and served two 4-year terms. He is currently
serving as a member of the LAFCo, the Local Agency Formation
Commission, and recently completed 2 years as Executive
Director for El Dorado County Emergency Services JPA. He was
elected to El Dorado Irrigation District's Board in November
2020, and has been selected as the Board President for 2023.
No one has more on-the-ground experience with the fires
plaguing the Sierra and the communities that are threatened by
them than Mr. Veerkamp, and we are very pleased to welcome him
back to the Committee today.
The Chairman. Thank you, Mr. McClintock. I now recognize
Mr. Veerkamp for 5 minutes.
STATEMENT OF BRIAN VEERKAMP, PRESIDENT, BOARD OF DIRECTORS, EL
DORADO IRRIGATION DISTRICT, PLACERVILLE, CALIFORNIA
Mr. Veerkamp. Thank you, Congressman McClintock, Chairman
Westerman, Ranking Member Grijalva, and Committee members. Good
afternoon and thank you for this opportunity to testify to my
knowledge and experience relating to NEPA, catastrophic
wildfire, the Endangered Species Act, and the need for reform.
Being an elected official at multiple governance levels, I have
a special respect for all of you and your public service to our
country.
I spend at least a month a year traversing our California
forests along with lands in Montana, Idaho, and Wyoming,
usually by foot, whether it be hunting, recreational hiking, or
just enjoying our public lands, but also taking note of the
landscape. My career was in, obviously, as pointed out,
emergency services, culminating as a Fire Chief and Director of
Emergency Services, working in many different roles throughout
that career, as well as being on an incident management team
that traveled the states of California, Montana, Idaho, and
Louisiana.
In 2019, I was honored to testify before this Committee on
the topic of wildfire-resilient communities. During my previous
testimony, I highlighted the facts of what the landscape was
looking like in our forests, rural areas, and in wildland urban
interface. It was not pretty, and it still isn't. Since that
testimony, we have experienced some of the most catastrophic
wildfires in history:
The Dixie Fire: Butte, Lassen, Shasta, Tehama Counties, 90-
plus days, 963,000 acres.
Caldor Fire: El Dorado, Amador, and Alpine Counties, 70
days, 220,000 acres, a Trestle project, fuel modification
project in progress for 4 years completed by the devastating
Caldor Fire. This fire completely wiped out the town of Grizzly
Flats: our wildlife habitat, including the spotted owl, a
grammar school, a major ski resort, and so much more, including
our major water supply to El Dorado County, our flume system.
The Moose Fire: Lemhi County, Idaho, 100 days, 130,000
acres, all in the Salmon River Watershed.
Mosquito Fire: Placer and El Dorado County, 60 days, 76,000
acres, all, again, in our watershed areas.
These fires have been responsible for civilian deaths,
major economic loss to the tax base of these areas, destruction
and devastation of our public education systems, devastation of
our forests, wildlife, and habitat, not to mention drinking
water supplies, the watersheds. And to me, the most two
important items--and I think they would be to you, as well--the
suppression costs of billions of dollars and the catastrophic
damage to our environment.
The fires of 2020, in a UCLA study, wiped out 17 years of
greenhouse gas reduction work. Think of what the fires since
that have done. Just think. The facts are coming forward.
The consequences to public health, education, drinking
water, and economics far outweigh any benefit realized by our
current NEPA protection guidelines. And I am not saying they
need to be gutted. There just needs to be some reform. The
protections of NEPA and the Endangered Species Act handcuff our
ability to get things done in a timely manner. If we don't
speed up processes and streamline them, there won't be any
habitat for us or environment left to protect.
My grandfather, George Wagner, 1899 to 2001, discussed with
me on many occasions the issue of land management. And during
his era, they learned from our Native Americans and others to
use fire as a tool, do certain things like girdle trees when
young, graze animals, harvest timber as a crop, create fuel
breaks. And this was how they managed the landscape.
So, what do we need to do? We need to support language such
as in this Act. A current example, case in point, was in the
Tahoe Basin. Thanks to a NEPA categorical exclusion, it created
10,000 acres to expedite the NEPA process so that work could
get done in a timely manner. This streamlined authority was
brokered by Senator Feinstein and Congressman McClintock, and
signed into law by President Obama, and it was a major factor
in stopping the Caldor Fire before it completely annihilated
the Tahoe Basin, one of our biggest jewels in this country.
Through the years, I have had many conversations with local
forest supervisors, one this morning at the United States
Forest Service building that now is working here in DC. And the
challenge of NEPA and the lack of funding prohibit any progress
from being made in a timely manner, and the catastrophic
results are, obviously, as mentioned.
We tend to spend forever trying something newfangled, or
reinventing science, or waiting for new science. The facts are
in the history behind us, and we should take advantage of that
history. I was blessed and had an ability to recently review
the Wallace, Idaho area and the Pulaski Trail, if anybody has
ever been there.
[Slide.]
Mr. Veerkamp. The great fires in the Inland Northwest in
1910 consumed over 3 million acres, and there was devastation,
just as we see up here on the TV monitors. And along there, the
trail, the kiosks speak of the massive vegetation buildup prior
to those fires. It was sort of ironic, because those kiosks
today relate to the massive vegetation that is still there; you
can barely hike the trail.
In conclusion, reform is needed, and we must work together
to do it. The landscape is very critical to us, our watersheds
are critical to us, and the like. I would like to leave you, as
well, with just a few of my truisms, one of them from my
grandfather.
An ounce of prevention is worth thousands of pounds of
environmental cure.
Per my grandfather, manage the land and it will manage you.
And we are seeing that result today.
And the question: NEPA, at what cost?
Thank you for this opportunity, and I will be available for
questions, as well. Thank you.
[The prepared statement of Mr. Veerkamp follows:]
Prepared Statement of Brian K. Veerkamp, El Dorado Irrigation District
Board Chair, Former County Supervisor, and Wildland Fire Consultant
``Consequences of Good Intentions''
Good afternoon and thank you for this opportunity to testify to my
knowledge, factual data, personal observations and experience relating
to NEPA, Catastrophic Wildfire, the Endangered Species Act, and the
need for reform/change. Being an elected official at multiple
governance levels, I have a ``Special'' respect for all of you and your
public service to our Country.
As introduced, my name is Brian K. Veerkamp. I am a 5th generation
Northern California native, descending from two Gold Rush era families.
For over 150 years our family has been involved in managing our private
and public lands, both in the semi-urban and mountainous forest
settings. Living and utilizing the land for ours and the environments
mutual benefit. I also spend at least a month a year traversing our
California Forests along with lands in Montana, Idaho, and Wyoming.
Usually on foot. Whether it be hunting, recreational hiking or enjoying
our public lands, but also taking note of the conditions on the
landscape. My career was in Emergency Services, culminating as a Fire
Chief and Director of our Emergency Services Authority. During my
tenure in the Fire Service, I helped plan Fire Resilient Communities,
served on a State Incident Management Team, responding to and
mitigating disasters of many kinds throughout California, Idaho,
Montana, and Louisiana. In 2019, I was honored to testify before this
Committee on the Topic of ``Wildfire Resilient Communities''.
During my previous testimony I highlighted the facts of what the
landscape was looking like in our Forests, Rural areas and in the
Wildland Urban interface. It was not pretty and still isn't. Since that
testimony we have experienced some of the most catastrophic wildfires
in history.'' Dixie Fire'' (Butte, Lassen, Shasta, and Tehama counties,
90+ days and 963,300 acres).'' Caldor Fire'' (El Dorado, Amador, and
Alpine counties, 70 days, 220,000 acres, Tressel Fuel Modification
project in progress for 4 years, completed only by the devastating
fire; complete loss of the community of Grizzly Flat, wildlife habitat
including the spotted owl, a grammar school and major ski resort).
``Moose Fire'' (Lemhi county, Idaho, 100 days, 130,000 acres).
``Mosquito Fire'' (Placer and El Dorado county, 60 days, 76,000 acres).
These fires have been responsible for civilian deaths, major economic
loss to the tax base of the area, disruption and devastation of Public
Education, devastation of our forests, wildlife and habitat, drinking
water supplies, watersheds and the two Most Important items:
Suppression costs in the Billions and the damage to our Environment.
The Fires of 2020 wiped out 17 years of Greenhouse gas reduction work.
Think of what the fires of 2021-22 have done. The air quality alone for
the duration of these fires brings many things to a halt and the
effects will be felt for years to come. The consequences to Public
Health, Education, Drinking Water, Economics, etc. far outweigh any
benefit realized by the current NEPA Protection regulations. These
protections have created far more serious consequences and must be
amended for NEPA to meet its intent. Tree mortality is at an all-time
high, primarily due to choked up stands and the trees cannot survive,
they are weakened allowing insects and dry conditions to kill them.
Being nearly 50 years old, this regulatory framework must be updated
and modified. There are many other regulatory opportunities to protect
the environment and so many in fact they compete with each other to the
detriment of their intent. The protections from NEPA and the Endangered
Species ACT handcuff anyone from accomplishing the needed tasks to
mitigate catastrophic consequences from occurring. Whether it be
Environmental Lawsuits or time delays, reality takes over and the
fallout goes against any common sense solutions most would utilize.
Locally we have been attempting to mitigate hazards along roadway
infrastructure and the Environmental Assessments have taken a year and
a half and there still not complete. These are existing roadways in the
Public Forests needed for ingress and egress. One has to ask why does
it takes so long, especially when it's for existing infrastructure?, If
we don't speed up processes and streamline them, there won't be any
habitat, forests, or environment left to protect. My Grandfather
(George Wagner 1899-2001) and I used to discuss this issue of land
management. During his era, they learned from our Native Americans and
others to use fire as a tool, girdle evasive trees when young, graze
animals, harvest timber as a crop, create breaks in the fuel, etc., to
manage the landscape. There used to be a multitude of resources
(loggers, ranchers, livestock grazing, etc.) available on our Public
Land, but now there are restrictions at times for public access due to
potential danger, making people fearful for stepping onto our taxpayer
funded Public Lands.
So, what do we need to do? Support language such as introduced in
this Act. There are many examples of these processes already working,
but the rules have been modified to accomplish results. Case in point,
the fuels work that had been done in the Tahoe Basin thanks to a NEPA
categorical exclusion. That streamlined authority was brokered by
Senator Feinstein and Congressman McClintock and signed into law by
President Obama. It created a 10,000 acre categorical exclusion to
expedite the NEPA process so the work could be done in a timely manner.
This work had a beneficial consequence, it made a great fuel break to
help stop the Caldor Fire from devastating the Lake Tahoe Basin. The
Rocky Mountain Elk Foundation in which I am a Life Member also works
with the USFS, Federal Fish and Wildlife, State Fish and Wildlife, and
others to accomplish habitat restoration and fuel modification work for
the preservation of Wildlife, the Environment, improve habitat, and
develop long term action plans to keep the land that way. There are
many studies and a lot of data that they have developed to more than
justify their action plans. Through the years I've had many
conversations with Forest Supervisor's wanting to do work in their
Regions and the challenge of NEPA and lack of funding prohibits any
progress from being made. Well, funding is beginning to flow and now
its time to take off the other handcuff. We need to utilize the tools
that are in the toolbox. Stewardship contracts, Good Neighbor programs,
utilize our Resource Conservation Districts, just as is occurring
currently at the devastated Ski Resort, Sierra at Tahoe. (Caldor Fire)
Unfortunately for them its on rehabilitation work. But still, it is an
example of how with some reform we can tackle this problem of overgrown
and out of control vegetation proactively. They may as well be called
jungles, not Recreational Forests. There are many other ``Best
Practices'' that can be instituted across the landscape that the
professionals know and the amazing thing is, they are items from the
past and other Countries deploy them and they work. We tend to spend
forever trying to do it in some newfangled way or it gets delayed, when
the simple, common sense solutions are right in front of us. We are
making major mistakes in managing our Natural Resources, specifically
Vegetation, and it's smacking us right in the face. When is enough,
enough? I recently visited Wallace Idaho to review the Polaski Trail
and the current level of vegetation in the area. I was aware of the
History of the Great Fires in the Inland Northwest in 1910, consuming
over 3,000,000 acres and destroying so much, including 87 deaths. As
you hike the Polaski Trail the Kiosks along the way speak volumes to
you about the extreme vegetation levels throughout the region and the
need for proper management of the landscape during that period and that
contributed to the devastating fire. I found this very hypocritical, as
the vegetation as of that visit was so thick and overgrown it was
crazy. Have we not learned a thing, or do we just talk about it. Oh,
did I mention it had been hot and dry for some time leading up the
fires. Records of drought and extreme moisture exist through our El
Dorado Irrigation weather archives and regional records. They verify
that things such as weather, change over time and there is enough
patterned history to reasonably predict and prepare for too much or not
enough precipitation. I learned long ago ``If its Predictable, its
Preventable''! Again, we fail at looking to the past to predict the
future.
In Conclusion, one can see reform and modification is needed. Could
be exemptions for Vegetation Management work (such as we instituted in
our Vegetation Management Ordinance for El Dorado County),
modifications such as proposed in this Act, Best Practices, or
combinations of all three that have and will work in the future. If we
don't manage our Public Lands for the benefit of all interests that can
be prioritized, we may as well give the land to other entities who can.
All we are doing is creating a huge ``Liability'' for our Federal
Government to have to come in post incident or occurrence and mitigate.
These mitigations are costing Billions, just look at the recovery costs
paid out by FEMA of late. Our Governments lack of proactive actions as
evidenced by the devastating consequences warrant paying any FEMA
claim. We can and should do better. We have the tools. We have the
intelligence, we have the history to learn from. Its more than time to
be proactive and not reactive. We can be strategic, surgical and
protect our environment while doing so. Billions should be prioritized
and spent on proactive management and the eventual overall costs will
go down. Working together behind the scenes and on the Landscape is the
answer Let's get to it. I leave you with a couple simple Veerkamp
truisms and a question.
An ounce of prevention is worth thousands of pounds (our
environment) of cure!
Per my Grandfather, ``Manage the Land or it will Manage YOU!
The question: NEPA--At what cost?
Thank you for this opportunity. I wish you all well, God Bless and
Godspeed! Please feel free to ask questions.
Also, I have included some photos of Pre and Post project work on
our Water District recreational property, the drinking water supply
canal for El Dorado County damaged by the Caldor fire, Caldor Fire
photos of damaged forest and Ski resort.
______
The Chairman. Thank you, Mr. Veerkamp. I now will introduce
Mr. John Beard, Jr., who is the Founder, President, and
Executive Director of the Port Arthur Community Action Network
in Port Arthur, Texas.
Mr. Beard, you are now recognized for 5 minutes.
STATEMENT OF JOHN BEARD, JR., FOUNDER, PRESIDENT, AND EXECUTIVE
DIRECTOR, PORT ARTHUR COMMUNITY ACTION NETWORK, PORT ARTHUR,
TEXAS
Mr. Beard. Thank you, Mr. Chairman. To the Chairman,
Ranking Member Grijalva, fellow members of the Committee,
staff, fellow Americans in this room, and guests, I thank you
for allowing me this opportunity to come here today to speak to
you with regard to the BUILDER Act. And I have heard a lot of
what has been said already, but before I get started into this
I will give you a little bit of a brief on myself.
I am a second generation refinery worker in the
petrochemical industry. I worked for ExxonMobil Corporation for
38 years. My father worked for Gulf Oil, which is now Valero.
We were both union men, and proudly so. I was also a city
councilman for 9 years and mayor pro tem in the city of Port
Arthur, which is one of the petrochemical hubs that holds this
country together in the petrochemical industry. And I have also
served in numerous other capacities in my city since I have
come away from there. But I also started the Port Arthur
Community Action Network for the sole purpose of addressing the
disparities that I saw from within the industry, and as a city
councilman, and also now, as a regular citizen in this current
capacity.
[Slide.]
Mr. Beard. So, if you will, I would like for you to take a
brief look as I speak and talk through this of what
environmental injustice looks like, the flarings that you see
going on there, and the various other pictures. This is what we
deal with on a daily basis. We are bombarded by chemicals and
pollution.
As a matter of fact, in 2010, the city of Port Arthur was
declared an environmental showcase city by the EPA. What we are
showcasing, I don't know. But if it is this, then that tells a
lot of the story.
But as you all have said today in talking about permit
reform, let me say this to it--and no offense to Mr. Graves,
because we are sister, I guess you could say, states--but what
we don't need is permitting reform that guts and takes away the
protections that NEPA gives to communities like mine.
As I said, we are an environmental justice showcase
community, because we also have twice the state and national
average for not just cancer, but heart, lung, and kidney
disease. And then we also have a high poverty rate, almost 30
percent in the city of Port Arthur, yet we have over $80
billion of industrial development going on in Jefferson County
and in the city of Port Arthur proper.
We are home to the largest refinery in the country. We are
also home to one of the largest export facilities for LNG in
the country, Cheniere. And all of this and more are being
brought here. And do you know why? They are brought to
communities like Port Arthur, not to River Oaks, not to Beverly
Hills, and other places, but because, in the words of one of
the captains of industry, that is the path of least resistance.
They are least able and affordable to be able to fight back.
So, when you talk to me about restricting access to the
legal system, which is a foundation of our country, then you
are telling me exactly that you are not going to give their
voice to be heard. The Chair mentioned earlier going so far to
say that we respect that, and that is good, that is fine and
perfect. But respect without access means you are not going to
be heard. We have to be heard to stop some of this from going
on.
But let me say this as we get to the end with regard to
permitting. I have sat in some of the meetings of FERC and
heard them talk about this. And one of the FERC commissioners
said that this project was held up 30 months, and that one 15,
and the other. But as I came to know, in some of the filings
that I have seen in Texas and in my city, the permits were not
held up because of government inefficiency, but because the
permits were incomplete that were sent to the agencies that had
to oversee them. Therefore, they got sent back, and they sat on
them. That is not the fault of the government.
But what is the fault of the government is to not fully
fund those agencies so that they have the manpower and the
training and the staff to do the work that they are designed to
do. So, if you are talking about reforming that way, I am in
total agreement with you. But if you are talking about reform
that guts those agencies, that minimizes and reduces their
effectiveness to do their job, that doesn't protect communities
like mine that are overburdened.
Let me tell you something as I close. We are called a
sacrifice community. You know why? Because America, to have oil
and gas, and drive planes and cars, and fly and go places, that
is what we have to put up with. We have to put up with smelly
odors in our homes that have been released, yet no one knows
where it came from. And there are any number of other things
that I will be glad to talk with you about if you ask me the
questions.
But I am here to say today that this bill, in the current
form it is written, is not permitting reform. It is a death
knell. It is a death sentence to communities like mine all
along the Gulf Coast, from Florida all the way to the tip of
Texas and Brownsville. Those communities deserve and need
protection, not weakening the protection. Strengthen it so we
can do this thing and have an energy transition that is clean,
green, and helpful, but not to where we allow industry to have
a blank check and continue what you are seeing there. Thank
you.
[The prepared statement of Mr. Beard follows:]
Prepared Statement of John Beard, Founder, President, and Executive
Director, Port Arthur Community Action Network
In 1987 the United Church of Christ, under the leadership of the
venerable Dr. Benjamin Chavis released the landmark report, Toxic
Wastes and Race in the United States.\1\ In characterizing
environmental racism, a term Dr. Chavis coined and how it operates and
manifests, the report notes, ``Racism is the intentional or
unintentional use of power to isolate, separate, and exploit others.''
It continues, ``Both consciously and unconsciously, racism is enforced
and maintained by the legal, cultural, religious, educational,
economic, political, environmental, and military institutions of
societies. Racism is more than just a personal attitude, it is the
institutionalized form of that attitude.''
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\1\ ``Toxic Wastes and Race In The United States: A National Report
on the Racial and Socio-Economic Characteristics of Communities with
Hazardous Waste Sites'', Benjamin Chavis, Commission for Racial
Justice; 1987. Article found at: https://www.nrc.gov/docs/ML1310/
ML13109A339.pdf
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My name is John Beard, I serve as the founder and executive
director of the Port Arthur Community Action Network. I live in Port
Arthur, Jefferson County, Texas, an environmental justice community
afflicted by institutionalized environmental racism. West Port Arthur
is a predominantly Black community along the Gulf Coast of Texas, that
has been an economic and energy ``sacrifice zone'' for the fossil fuel
industry. West Port Arthur, like many Black, Brown, and Indigenous
communities throughout the United States, was intentionally segregated
through the practice of redlining--a discriminatory and racist practice
that consisted of the systematic denial of mortgages based on race, and
the forced centralization of Black people in ways not seen since the
height of chattel slavery in the United States. In addition to
pillaging the ability of Black folk to establish and maintain
generational wealth, redlining also is responsible for the placement of
toxic facilities and operations proximate to Black and Indigenous
communities, which, in too many instances, has denied their
generational health.
Port Arthur, home to one of the largest concentrations of oil
refineries in the nation, with three major refineries and 8 additional
oil and gas operating facilities, is the epitome of the afflictions
directly associated with redlining. For instance, the asthma rate for
children in West Port Arthur is twice the national average. In
comparison to the average Texan, Black residents in Jefferson County,
where Port Arthur is located, are 15% more likely to develop cancer and
40% more likely to die from cancer.\2\ Sulfur dioxide, a hazardous
chemical that is released by fossil fuel facilities like those in West
Port Arthur, has been correlated with an increase in strokes, pulmonary
diseases, and death.\3\ While the Environmental Protection Agency (EPA)
has set the Sulfur Dioxide threshold at 75 parts per billion, nearby
facilities in West Port Arthur routinely surpass 100 parts per
billion,\4\ proving the sage words of environmental justice scholars
and practitioners Dr. Beverly Wright and Dr. Robert Bullard who
describe communities like mine as, ``the wrong complexion for
protection''.\5\
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\2\ ``Fumes Across the Fence-Line: The Health Impacts of Air
Pollution from Oil & Gas Facilities on African American Communities'',
National Association for the Advancement of Colored People (NAACP);
November 2017. Article found at: https://naacp.org/resources/fumes-
across-fence-line-health-impacts-air-pollution-oil-gas-facilities-
african-american
\3\ ``Port Arthur, Texas: American Sacrifice Zone'', Natural
Resources Defense Council; Article found at: https://www.nrdc.org/
onearth/port-arthur-texas-american-sacrifice-zone
\4\ ``Any Way the Wind Blows: A Koch-owned chemical plant in Texas
spent years running from the Clean Air Act. New evidence suggests it
bent the law until it broke.'', Naveena Sadasivam, Clayton Aldern;
Grist, February 2023; Article found at: https://grist.org/project/
accountability/koch-oxbow-port-arthur-texas-clean-air-act-pollution/
\5\ ``The Wrong Complexion for Protection: How the Government
Response to Disaster Endangers African American Communities'', Robert
D. Bullard, Beverly Wright, 2012, Article found at: https://
muse.jhu.edu/book/17926
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And while the fossil fuel industry argues that oil and gas
development placement in West Port Arthur supports the local economy,
the unemployment rate of my community has continued to grow in spite of
fossil fuel industry expansion.3 Additionally, the proximity
of West Port Arthur to fossil fuel facilities and operations continues
to exhibit an adverse impact on property values--in effect, reducing
them to levels that are lower than when some of them were originally
purchased. The impacts of redlining are still felt in communities like
West Port Arthur and other cities and states nationwide--in ``blue
states'' just as much as in ``red states'' and throughout Indian
Country.
The struggles of my community are not felt in isolation. Numerous
``cancer alley'' communities are along the gulf coast, just like
``asthma alleys'' throughout the northeast and western cities. While we
all consume oil and gas products, a study found that in the United
States, PM2.5 air pollution is disproportionately induced by White
Americans and disproportionately inhaled by communities of color.\6\
And while fossil fuel industry pollution creates health and economic
consequences for everyone, these consequences are unquestionably borne
unequally and disproportionately impact communities of color, low-
income communities and Indigenous communities.\7\
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\6\ ``Inequity in consumption of goods and services adds to racial-
ethnic disparities in air pollution exposure'', Tessum et al, March
2019, Article found at: https://www.pnas.org/doi/full/10.1073/
pnas.1818859116
\7\ ``The 2020 Report of the Lancet Countdown on Health and Climate
Change: Responding to Converging Crises,'' The Lancet, vol. 397, no.
10269, pp. 129-170, 9 January 2021. https://www.thelancet.com/article/
S0140-6736(20)32290-X/fulltext.
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The gulf coast has been lucrative for fossil fuel executives, who
benefit financially from fossil fuel extraction at the cost of the
health and well-being of fenceline communities, predominantly low-
income communities of color, who breathe in the toxins released by
these facilities. From West Port Arthur, Texas, to Houston, Texas, to
St. Johns Parish, Louisiana--our communities are interconnected by a
shared struggle that is intensifying in severity. We are the fenceline
of polluting industries and the frontline of climate catastrophes as
increasingly powerful hurricanes continue to batter our coasts and are
anticipated to become more powerful and calamitous if we continue to
pollute our atmosphere with toxic emissions that result from the
extraction, refining, and emitting of fossil fuels. With each storm, we
witness the destruction of our communities, coupled with the massive
displacement of our communities and deeper entrenchment into poverty.
Communities in the Gulf Coast stand at the intersection of social
justice movements rooted in environmental justice, climate justice,
civil rights, feminist economies, and much more. Our fight for justice
goes beyond the Gulf Coast, as communities of color throughout the
United States disproportionately bear the brunt of toxic facilities.
The National Environmental Policy Act (NEPA) of 1970 is one of the few
federal laws that provides some protections and requires environmental
review and consideration for proposed actions in communities like mine.
Attempts to deregulate and weaken NEPA represent a clear and
present danger for residents of West Port Arthur and surrounding
communities and must be seen as nothing more than a thinly veiled
diminishing of the scanty defenses available to us in the first place.
Previous bipartisan efforts have attempted to weaken protections
offered to public health and the natural environment. Yet, as I explain
below, the Building United States Infrastructure through Limited Delays
and Efficient Reviews Act or ``BUILDER Act'' is yet another bill that
will benefit fossil fuel corporations who have donated extensively to
members advancing their interests.\8\
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\8\ ``Fossil Fuel Subsidies Overview,'' Oil Change International.
Article found at: https://priceofoil.org/fossil-fuel-subsidies/
---------------------------------------------------------------------------
I will specifically discuss the proposed rollbacks to NEPA
contained in the BUILDER act and how they would have deleterious
effects in the areas of Community Input/Public Participation, Due
Process, and Federal Transparency as stipulated in myriad United States
codes and regulations, including but not limited to, 5 U.S.C.
Sec. Sec. 551-559, the Administrative Procedure Act.
I. Community Input and Public Participation
Pursuant to the plain language of Title 40 Section 6.203(a)(5) of
the Code of Federal Regulations, ``[Lead Agencies and Responsible
Officials] must use appropriate communication procedures to ensure
meaningful public participation throughout the NEPA process.'' The
section goes on to say that agencies must ``make reasonable efforts to
involve the potentially affected communities where the proposed action
is expected to have environmental impacts or where the proposed action
may have human health or environmental effects in any communities,
including minority communities, low-income communities, or federally
recognized Indian tribal communities.'' \9\
---------------------------------------------------------------------------
\9\ 40 CFR Sec. 6.203--Public participation. Article found at:
https://www.law.cornell.edu/cfr/text/40/6.203
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As pointed out by EPA, Department of Energy, and other federal
agencies, ``In addition to promoting transparency, public involvement
is crucial for facilitating better decision-making.'' \10\ Further, key
benefits of a robust and transparent public participation process, ``is
the development of capacity for managing difficult social problems.
This capacity includes improved relationships and trust between
decision-makers and the public, and among different stakeholders
themselves. Also, when done well, public participation helps to teach
stakeholders meaningful and collaborative ways to approach each other,
manage difficult decisions, and resolve disputes''.\11\ All to say,
enhancing and improving community involvement and public participation
would not result in impediments to proposed actions. Rather, it would
improve trust between stakeholders, and establishing trust, in turn,
can reduce legal challenges and other actions that could delay the
environmental review process.
---------------------------------------------------------------------------
\10\ ``Public Involvement in NEPA'', Department of Energy. Article
found at: https://www.energy.gov/em/public-involvement-nepa
\11\ ``Public Participation Guide: Introduction to Public
Participation'' Environmental Protection Agency (EPA). Article found
at: https://www.epa.gov/international-cooperation/public-participation-
guide-introduction-public-participation
---------------------------------------------------------------------------
The Motiva Port Arthur Refinery is the largest oil refinery in
North America.\12\ The Motiva Refinery was located 300 yards from the
Carver Terrace public housing project.\13\ Residents at the Carver
Terrace public housing project experienced such poor health and
associated diminished economic mobility that advocates pushed for the
relocation of the public housing project. Advocates were successful in
their pursuit. However, it is unsettling to comprehend that residents
intentionally sought relocation to escape the hazardous conditions of
the Motiva Refinery. Community input allowed residents to escape the
toxicity of the Motiva refinery. However, the Motiva Refinery never
underwent public input since it was erected in 1902, decades before
NEPA was enacted.
---------------------------------------------------------------------------
\12\ Motiva--Homepage; Found at: https://motiva.com/about/what-we-
do/refining
\13\ ``PORT ARTHUR, TEXAS: The End of the Line for an Economic
Myth'', Environmental Integrity Project; August 2017. Article Found at:
https://environmentalintegrity.org/wp-content/uploads/2017/02/Port-
Arthur-Report.pdf
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The largest air pollution emitters in Texas are by and large in
Jefferson County--The Motiva refinery, Oxbow Calcining's Port Arthur
plant, the Beaumont Refinery, and Valero's Port Authority Refinery were
all created before the enactment of NEPA.\14\ Over the decades, many of
these refiners have undergone significant expansions and have been able
to subjugate parts of the NEPA process since the primary facility
itself was ``grandfathered'' in. For example, ExxonMobil announced last
week that they intend to start up its expanded Beaumont Refinery,
becoming the second largest in refining capacity.\15\
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\14\ ``Nitrogen Oxides Pollution Reductions Needed in Texas to Meet
new EPA Health Based, Air Quality Standard for Ozone''; Sierra Club
Lone Star Chapter; Article Found at: http://www.energyjustice.net/map/
server-test/uploads/tx_facilities_nox.pdf
\15\ ``Exxon prepares to start up $2 bln Texas oil refinery
expansion''; Erin Sewba, Reuters; January 2023, Article Found at:
https://www.reuters.com/business/energy/exxon-prepares-start-up-12-bln-
texas-oil-refinery-expansion-sources-2023-01-13/
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The environmental degradation of these fossil fuel projects,
alongside many other projects throughout the United States, catalyzed
numerous environmental protection bills, including NEPA. In the 1970s,
when NEPA was signed into law, it seemed widely agreed upon that the
federal government must step in to protect the earth's resources,
especially air, and water, that are fundamental to the health and well-
being of communities. While NEPA could not mitigate past harms caused
by facilities, it ought to be used to prevent further ecosystem
deterioration.
Since the inception of NEPA, the opportunity for public comment has
been an integral part of the NEPA process. Public comment has served as
a way for communities to have their voices heard. Public comment is
vital in communities intentionally placed alongside facilities due to
practices such as redlining and who had no say in the initial
development of the fossil fuel infrastructure.
II. Due Process and Government Accountability
The United States legal system is based on the concept of due
process--that is, when and where harm to people and communities can be
demonstrated, these entities are then afforded due process of the law
pursuant to Amendment 14 of the Constitution. In fact, various
iterations of the US Supreme Court have held in its decisions that this
entitlement and associated protections apply to ALL people regardless
of race, color, and citizenship.
For NEPA, due process is actualized by the environmental review
requirement, including an analysis of potential environmental justice
and other socioeconomic impacts, for all federally funded and sponsored
projects/proposed actions. NEPA enables communities to ensure due
process in the face of major projects and developments. Should any
environmental review process be deemed by an impacted community to be
incomplete, inadequate, or intentionally or unintentionally
duplicitous, due process provides these communities with the use of the
judicial system to intervene and determine if NEPA was complied with
and, if not, direct mitigation for those impacts significant threats to
public health, safety, and welfare and the natural ecosystem at large.
A recent example of a judicial intervention that supported
communities was blocking the Keystone XL pipeline. In November 2018, in
Indigenous Environmental Network v. U.S. Department of State,
Indigenous Environmental Network won its case against the U.S.
Department of State when a federal judge ruled that the Keystone XL
pipeline had an inadequate assessment conducted, violating NEPA.\16\
Due to this ruling, construction of the tar sand pipeline was halted.
The Keystone XL pipeline went on to have numerous other legal battles
before the project was ultimately discontinued by President Obama, and
again by President Biden--since the pipeline's terminus was slated for
Port Arthur, the end of the Keystone XL pipeline was a victory for my
community.
---------------------------------------------------------------------------
\16\ ``Final Ruling--Case 4:17-cv-00029-BMM'' November, 18. Article
found at: https://www.sierraclub.org/sites/www.sierraclub.org/files/
blog/KXL%20ruling.pdf
---------------------------------------------------------------------------
A more recent example of how NEPA intervention prevented
environmental harm and environmental racism is the defeat of the
controversial Byhalia Pipeline that was slated to be constructed, in
part, through Memphis, Tennessee. The pipeline would have
disproportionately impacted the majority Black communities, including
Boxtown, a community founded by freed slaves during the Civil War.
Additionally, according to the Southern Environmental Law Center
(SELC), Boxtown, based on a 2013 study, has a cumulative cancer risk
that's four times higher than the national average, likely due to the
high concentration of industrial facilities in the area and associated
exposure to high levels toxic solid waste and air emissions.\17\
---------------------------------------------------------------------------
\17\ ``How the Byhalia Pipeline would have impacted Memphis'' March
10. Southern Environmental Law Center. Article found at: https://
www.southernenvironment.org/news/byhalia-pipeline-basics/
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The NEPA process, combined with powerful and indomitable grassroots
organizing, prevented the Byhalia Pipeline from becoming another
example of environmental racism and, instead, an example of how NEPA
assists with increasing environmental justice. Had laws like the
BUILDER Act been in effect, Byhalia would have been fast-tracked and
rammed through a community already experiencing disproportionate
environmental and health impacts, which is why we need to understand
and state plain that the BUILDER Act, if passed, would extend our
nation's toxic legacy of treating Black, Indigenous, other People of
Color, and the poor communities as disposable, ineffable, and
sacrificial.
The BUILDER Act includes multiple provisions that would impede
communities' ability to exercise due process. The BUILDER Act seeks to
prohibit injunctive action, allowing long-term damage to begin despite
community concern. If judicial injunctions were no longer a legal tool,
then the KeystoneXL pipeline would have been able to begin construction
while the case was in court. The BUILDER Act would also block
communities from filing claims if they could not participate in the
public comment period. Public comment periods are often inaccessible to
communities, especially due to their short time frames. Failure to
participate in the public comment period should not lead to the
exclusion of communities from participation in the judicial system. The
BUILDER Act would also limit the time to file a claim from the typical
statute of limitations of 6 years to 120 days. This would essentially
bar communities, particularly low-income communities, from being able
to file a claim due to the financial obstacles that communities face in
seeking legal aid. Communities have often been protected from harmful
developments due to the judicial system. Any actions that limit
communities' ability for judicial intervention directly infringes on
our right to due process. The BUILDER Act's attempt to minimize
meaningful participation must be called out, confronted, and elucidated
as an infringement on communities' self-determination nationwide so
that fossil fuel corporations can continue their business model that
prioritizes profits over people.
So let's be clear, this is less about NEPA and constitutional due
process slowing down proposed actions like KXL and Byhalia and more
about the inability of projects like these to demonstrate no
significant impacts on public health and the natural environment in a
way that is legally defensible. And further, it's also about the
proclivity of these kinds of projects to exacerbate environmental
racism and the climate crisis alike and their inability to prove
otherwise.
III. Federal Transparency
The BUILDER Act would allow project sponsors the opportunity to
create their environmental documents. We have seen numerous times,
especially among the fossil fuel industry, that fossil fuel companies
will intentionally omit and manipulate information to the public that
would hurt their bottom line.
One example that has gained much national attention is that Exxon
did complex scientific analysis in the 1970s that accurately predicted
the impacts of climate change.\18\ Yet, despite Exxon's awareness of
the catastrophic effects on the globe of their fossil fuel operations,
Exxon spent millions of dollars over the past few years on public
campaigns and lobbying to deny the impacts of climate change. While
Exxon's deception has gained attention due to its national reach, they
aren't the only Texas-based fossil fuel company that has decreased
public trust by withholding information.
---------------------------------------------------------------------------
\18\ ``Exxon Knew about Climate Change almost 40 years ago'';
Shannon Hall, Scientific American; Article Found at: https://
www.scientificamerican.com/author/shannon-hall/
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Oxbow Calcining's Port Arthur plant was recently found to have
intentionally changed its operating procedures to avoid getting noticed
for air quality violations.4 Oxbow would reduce or modify
their operating systems when the wind blew toward air quality monitors.
When the wind was not blowing toward monitors, they would resume normal
operations, although the operations themselves exceeded air quality
regulations.
If major fossil fuel companies with the most financial resources to
hire researchers have used their scientific expertise to deceive the
public, can we trust them to disclose and conduct environmental impact
statements accurately? The scientific process is meant to be an
unbiased analysis. However, the scientists themselves often hold their
own biases. Allowing scientists with a vested interest in corporations
to prepare documents would mean the scientific integrity of the reports
is diminished, the efficacy of the statement reduced, and the
legitimacy of NEPA at large eroded.
Allowing sponsors to prepare their documents is a giveaway to the
fossil fuel industry that would inevitably lead to fast-tracking fossil
fuel industries at the continued demise of communities like mine. To
further weaken the analysis performed under an environmental statement,
the BUILDER Act would make it so that agencies are no longer liable to
do new scientific research when conducting environmental impact
assessments. This is deeply troubling as we continue to see more and
more new scientific research showcasing the negative health impacts of
chemical pollutants and the effects of the fossil fuel industry on the
climate. In not conducting necessary additional scientific studies, the
federal government would choose a path of negligence on the potential
long-term ramifications of a proposed project.
Conclusion
Each of you took an oath in which you swore to uphold and defend
the United States Constitution--yet there are those of you who are
advocating for a piece of legislation that would ostracize the people
who employ you from exercising an epochal and cherished Constitutional
right to Due Process. If we are truly to be a nation of laws, they
cannot be established or articulated by legislative bodies that operate
through a lens of profound contradictions.
As we discuss the future of NEPA, we must shift away from
determining ways that NEPA should be ``reformed'' and instead imagine
ways in which NEPA can be strengthened to better serve and protect
communities based on the best scientific understanding and analysis
available today. The science is clear--communities of color
disproportionately bear the brunt of polluting industries and the
accompanying health impacts. The science also shows us that climate
change already has, and will continue to be, a threat multiplier,
wherein communities struggling today will be the first and worst
impacted by impending climate catastrophes. Inequality in the United
States continues to grow--from America's disparities in life expectancy
to the racial wealth gap. We cannot bring equality, let alone equity,
in our nation without intentionally putting protections for communities
of color into law.
______
The Chairman. Thank you, Mr. Beard, for your testimony. And
again, our hearing today is on NEPA, not on the Clean Air Act
or FERC.
And I want to finally introduce Mr. Keith Pugh. He is the
President of the American Public Works Association from
Asheville, North Carolina. I very much look forward to hearing
his testimony, a fellow engineer.
Mr. Pugh, you are now recognized for 5 minutes.
STATEMENT OF KEITH PUGH, PE, PWLF, PRESIDENT, AMERICAN PUBLIC
WORKS ASSOCIATION, ASHEVILLE, NORTH CAROLINA
Mr. Pugh. Chairman Westerman, Ranking Member Grijalva,
members of the Committee, thank you for the opportunity to
provide testimony on reforming NEPA. I am Keith Pugh and am
proud to serve as President of the American Public Works
Association, which represents over 30,000 public works
professionals.
In 1988, I started my career as a municipal engineer, and
worked my way up to Director of Engineering Services for the
city of High Point, North Carolina, a position I held for 15
years. Today, I continue my work with WithersRavenel, a 100
percent employee-owned, multi-disciplinary civil and
environmental engineering firm that delivers services across
North Carolina.
APWA members serve in the public and private sectors,
providing expertise on local, state, and federal levels. They
plan, design, build, operate, and maintain transportation,
water systems, sanitation, public buildings and grounds,
emergency planning, and response, and other structures and
facilities essential to our economy and our quality of life.
Since NEPA was enacted, environmental protection has become
a prime consideration in infrastructure. Like any policy that
has been in place for five decades, NEPA should be updated to
address current societal needs, and to maintain adequate
environmental protections.
And as reported by CEQ, for Federal Highway projects the
average length of a final EIS was 645 pages, and NEPA reviews
took 7.3 years. The increased time and page length is due to
administrative burdens placed on communities investing in their
infrastructure. These burdens are often overwhelming for public
works professionals, who have limited resources to carry out
their responsibilities.
Our infrastructure needs continued updating and maintenance
and, in some cases, full replacement. Roads, bridges, water
systems, emergency management, sanitation, and so much more
need investment right now. While the Federal Government does
appropriate funds for projects like these, some communities
decide against applying, due to the onerous nature of
permitting requirements.
In my experience, any time Federal funds were introduced
into a project, we immediately added at least 25 percent to our
budget. Most agencies can't handle the additional
documentation, so they seek outside assistance, which
automatically increases the overall cost further. Some
communities that cannot access other financing sources rely on
Federal funding, and end up spending a large portion of the
project dollars on the permitting requirements. In the worst
cases, communities defer maintenance until infrastructure
fails. In the end, many are not upgrading and maintaining their
infrastructure as needed, which leads to a lower quality of
life for our residents, lower environmental protection, and
higher public health risks.
For infrastructure programs to be most effective, the
application process should not be so complex that it dissuades
small and disadvantaged communities from attempting to access
funding. Public works professionals are doing what is best for
their communities, despite an array of challenges, and APWA
places a high priority on respecting and enhancing local
autonomy.
Relief is desperately needed from supply chain shortages
and inflation. The cost of construction and materials has
rapidly increased beyond original project estimates. Even
proactive communities are not immune to these cost and timing
issues, which are exacerbated by permitting delays. Higher
costs are ultimately passed on through more expensive rates or
the diversion of resources from other community priorities.
APWA supports continuing efforts to streamline the
regulatory process, and we have been vocal during
administrations of both parties, including in the FAST Act and
One Federal Decision, as codified in the Infrastructure Law.
These actions have provided a more predictable, transparent,
and timely review and authorization process for delivering
major infrastructure projects.
However, work remains, and APWA supports establishing a
lead Federal agency to develop a joint review schedule;
establishing time and page limits for completion of
environmental documents; extending the completion period with
the approval of the applicant, when necessary, to allow for
further consultation with local agencies; bringing the statute
of limitations for NEPA cases in line with other environmental
statutes; reducing duplicative reporting by allowing adherence
to state or even local standards; and finally, examining a
reasonable number of feasible alternatives for projects,
including an analysis of any negative environmental impacts,
for taking no action. All of these recommendations we are
pleased to see included in the BUILDER Act.
Thank you for holding this hearing and your work on permit
reform. APWA stands ready to assist you to work to make these
reforms law.
[The prepared statement of Mr. Pugh follows:]
Prepared Statement of B. Keith Pugh, President of the American Public
Works Association
Chairman Westerman, Ranking Member Grijalva, and Members of the
Committee, thank you for the opportunity to provide testimony on
proposed reforms to the National Environmental Policy Act (NEPA). My
name is Keith Pugh, and I am proud to serve as President of the
American Public Works Association (APWA) representing more than 30,000
members and public works professionals. I started my career in public
works as a municipal engineer with the City of Greensboro, N.C. in 1988
and worked my way up until I assumed the role of Director of
Engineering Services for the City of High Point, NC, a position I held
for 15 years. Today, I continue my work with WithersRavenel, a 100%
employee-owned multidisciplinary civil and environmental engineering
firm that delivers engineering, planning, and surveying services across
North Carolina.
APWA members serve in the public and private sectors providing
expertise on the local, state, and federal levels. They are dedicated
to providing sustainable public works infrastructure and services to
all people in rural and urban communities, both small and large.
Working in the public interest, our members plan, design, build,
operate and maintain transportation, water supply and wastewater
treatment systems, stormwater management, drainage and flood control
infrastructure, waste and refuse disposal systems, public buildings and
grounds, emergency planning and response, and other structures and
facilities essential to the economy and quality of life nationwide.
NEPA is important to public works professionals and serves as the
regulatory framework for protecting America's environment while
allowing vital infrastructure projects to be undertaken. In the half
century since NEPA was enacted, environmental protection has become a
prime consideration in the planning, design, and construction of
infrastructure. Like any policy that has been in place for five
decades, NEPA should be updated to address current societal needs.
As found by the Council on Environmental Quality, for federal
highway projects the average length of a final Environmental Impact
Statement (EIS) was 645 pages and the average time to conduct NEPA
reviews was 7.3 years, we need to protect our environment and find
efficiencies to reduce these burdens--it can be done. The increased
time and page length is attributable to administrative burdens placed
on communities investing in their infrastructure. These burdens are
often overwhelming for public works professionals in carrying out their
responsibilities with limited resources. For instance, I am working on
a greenway project for which the NEPA process has already added
approximately 18 months to our project timeline and tens of thousands
of dollars to the cost.
Our nation's infrastructure needs continued updating and
maintenance, and in some cases full replacement. Roads, bridges,
drinking water, wastewater, emergency management, sanitation,
cybersecurity and much more need investment right now. While the
federal government does appropriate funds for projects like these
across the country, some communities are deciding against applying for
federal funds due to the onerous nature of permitting requirements,
including NEPA. In my experience, any time federal funds were
introduced into a project, we immediately added at least 25% to the
project budget. However, the final cost could be significantly higher
than that. This is due to the administrative burdens placed on the
local government, the design professionals working on the project, the
contractor, and the inspection close-out process. Furthermore, some
small agencies do not have the staff capacity to handle the additional
documentation, so they have to seek outside assistance which
automatically increases the overall project cost.
Some communities that cannot access other financing sources rely on
federal funding and end up spending a large portion of the project
dollars on permitting requirements rather than on infrastructure
improvement. In the worst cases, these communities defer maintenance
until infrastructure fails. We have seen this occur across the country
and the consequences for people and the environment, including in my
home state where delays in water infrastructure improvements risk
increased chances of flooding and contamination from major storm
events. These delays extend to transportation systems including mass
transit that reduce congestion and emissions. In the end, many
communities are not upgrading and maintaining their infrastructure as
needed, leading to a lower quality of life for residents, as well as
lower environmental protections and higher public health risks.
For infrastructure programs to be most effective, the application
process should not be so overly complex that it dissuades small, rural,
tribal, and disadvantaged communities from attempting to access
funding. Public works professionals are doing what is best for their
communities despite an array of challenges, and APWA places a high
priority on respecting and enhancing local control for infrastructure
projects. It is important that local governments have a seat at the
table and are fully engaged in the permitting process since they know
their communities best. We strongly encourage the federal government
and industry to coordinate with state and local governments on
infrastructure projects.
Additionally, unfunded mandates should be avoided, and financial
support should be provided to states and localities to fulfill federal
mandates. This is especially true now, as relief is so desperately
needed from supply chain shortages and inflation. The cost of
construction and materials has rapidly increased and necessitated the
acquisition of significant additional funding beyond original
estimates. Communities are considering, in some cases, pre-ordering
items such as pumps, valves, pipe, iron castings, precast units, and
other items to expedite the construction process. By pre-ordering
materials, agencies can theoretically secure materials quicker than the
contractor who would have to wait until having a fully executed
contract with the agency before proceeding. The problem with this type
of ordering is typically storage and delivery of materials, as well as
warranty issues. This shows that even proactive communities are not
immune to these cost and timing issues, which are exacerbated by
permitting delays. These higher costs are ultimately passed on to the
public through higher rates or the diversion of resources from other
community priorities.
APWA supports continuing efforts to streamline the regulatory
process related to infrastructure projects and has been vocal in that
support during administrations of both parties. APWA has been
supportive of streamlining efforts undertaken in the Fixing America's
Surface Transportation (FAST) Act, and ``One Federal Decision'' when it
was proposed by the Trump administration and codified in the
Infrastructure Investment and Jobs Act (IIJA). These actions have
provided a more predictable, transparent, and timely federal review and
authorization process for delivering major infrastructure projects.
However, work remains to be done, and APWA supports:
Establishing a lead federal agency to develop a joint
review schedule and preparation of a single environmental
document and joint record of decision for projects that
require multi-agency reviews.
Establishing time limits of two years for completion of
Environmental Impact Statements (EIS) and one year for
Environmental Assessments (EA).
Establishing a 300-page limit for EIS of ``extraordinary
complexity'' and a 75-page limit for each EA.
Extending the completion period with the approval of the
applicant when necessary to allow for further consultation
with local agencies.
Bringing the statute of limitations for NEPA cases in line
with other environmental statutes (120 days).
Reducing duplicative reporting by allowing adherence to
state or even local standards often equally or more
stringent than federal rules to be used as evidence of
compliance with federal standards.
Examining a reasonable number of alternatives for projects
that are technically and economically feasible, including,
if considered, an analysis of any negative environmental
impacts of a no action alternative.
Clarifying that the environmental review process should
consider any proposed action within the context of past,
present, and ``reasonably foreseeable'' effects.
All recommendations we are pleased to see included as provisions in the
BUILDER Act.
Chairman Westerman and Ranking Member Grijalva and Members of the
Committee, thank you and your staff for holding this hearing and your
work on permitting reform. We are especially grateful for the
opportunity to submit this statement and speak to the experiences of
our members with the permitting process. APWA stands ready to assist
you and Congress as you work to make these reforms law.
______
The Chairman. Thank you, Mr. Pugh, and thank you again to
all of our witnesses, not only for your oral testimonies, but
for your written testimonies. I took time and read every one of
your testimonies, and really appreciate you.
The testimony I didn't read, though, was the one that CEQ
wrote and sent over here because, not only did they not come to
our Committee, they didn't even submit their written testimony,
which tells me they are either ashamed of what they are doing,
they don't know what they are doing, or they don't care what we
are doing. Any way you look at it, they are not at the table,
and they should be.
So, again, thank you to the witnesses who came here today,
who care about this issue. I want to now go to the dais and
have Members ask questions. And we might not have time for all
the questions today. Members may submit questions in writing,
and we would ask that you would answer those.
Under Committee Rule 3, members of the Committee--OK, I am
getting ahead of myself.
I now want to recognize Mr. McClintock for 5 minutes for
questions.
Mr. McClintock. I thank you, Mr. Chairman. Excess timber is
going to come out of the forest in only two ways. Either we
will carry it out or nature will burn it out.
During the 20th century, U.S. foresters would mark off
surplus timber every year. They would auction it to logging
companies who would then pay us to remove it--25 percent of the
revenues from the Federal timber auctions went to the local
governments affected, and the other 75 percent went back to the
Forest Service to manage our lands. The result was healthy and
resilient Federal forests and thriving local economies.
But then we passed the National Environmental Policy Act,
with the promise that it would improve the forest environment.
Well, now simple forest-thinning projects require an average of
4\1/2\ years of environmental studies, costing millions of
dollars, more than the value of the timber. So, instead of
forest-thinning projects making money for the Federal
Government, they cost us money. So, not much gets done. Timber
harvesting on Federal lands in the Sierra has fallen 80 percent
under NEPA, and the number of timber mills declined from 216 to
32. Without loggers carrying out excess timber, nature has
returned to burn it out.
California has done enormous damage to its economy by
imposing the most draconian carbon restrictions in the country.
Yet, a joint study by UCLA and the University of Chicago
recently documented that the carbon released from just 1 year
of forest fires in California completely negated the entire
carbon emissions reduced over 16 years, combined. This is
lunacy. When a law not only doesn't achieve its purpose, but
becomes counterproductive to its purpose, it is long time to
alter or abolish it, and that time is long overdue for NEPA.
The categorical exclusion from NEPA that was originally
contained in my H.R. 3382 was included in the WIIN Act in 2016.
That measure provided for a categorical exclusion from NEPA for
forest-thinning projects in the Tahoe Basin. It reduced the
study time required by NEPA from 4 years down to less than 4
months, and the environmental reports from 800 pages down to a
few dozen. Over the last 5 years, the Tahoe Basin Management
Unit has increased removal of excess timber from 1 to 2 million
board-feet a year to an average of 9 million board-feet under
this authority, and the treated acreage in the Tahoe Basin has
now tripled.
As Mr. Veerkamp said, when the Caldor Fire hit one of these
treated tracks, it laid down and it was stopped before it could
wipe out the city of South Lake Tahoe. The town of Grizzly
Flats wasn't as fortunate, because they weren't covered by this
legislation.
For decades, NEPA held up a similar treatment project that
experts warned was absolutely essential to protect that town.
The Trestle project was delayed so long that it couldn't be
implemented by the time the Caldor Fire utterly incinerated the
entire town of Grizzly Flats.
We desperately need to extend the categorical exemption
from NEPA to all Federal lands. My bill to do so in this
session is awaiting hearing in this Committee, and I hope that
we will see it on the Floor without delay. Until then, we have
this bill that would at least set time limits on environmental
reviews to 2 years, and limit the size of the studies to about
150 pages.
After 50 years of experience with NEPA, the results are
devastating: entire communities wiped out by catastrophic fire,
countless species habitats destroyed, millions of acres of
forest laid waste. The environmental left promised us that NEPA
would protect our forests. Instead, it is destroying them.
Mr. Veerkamp, what do you think would have happened to
Grizzly Flats if the Forest Service had been able to complete
the Trestle project?
Mr. Veerkamp. It more than likely would have been easily
defended. We have numerous abilities to fight wildland fire and
defend structures, but there was just no way, with all of that
heavy fuel load that was present that was targeted to be
thinned, mitigated and so forth. It more than likely would have
been protected.
Mr. McClintock. How is it that privately-held forests
throughout the Sierra can be maintained at healthy densities,
while making money doing it, while Federal lands directly
adjacent to them have become morbidly overgrown and cost us
money?
Mr. Veerkamp. Well, it is primarily due to the
complications of the protection acts that were put into place
to protect our environment, and the consequences of them. Best
intentions, but the consequences have turned totally negative.
And we are seeing that annually now.
And, again, we are taking care of lots of other work for
protection and wiping them out, as well as polluting our
environment tremendously, as you alluded to in your study, as I
did too, the UCLA study.
Mr. McClintock. Should we extend a categorical exclusion
throughout the Federal lands?
Mr. Veerkamp. Absolutely. It has to be done because, again,
there are enough other protections and avenues into the way we
do things today that the lands will be protected, and the
environment will be, the consequences will be good. And we just
have gotten down the other side of that. So, absolutely, yes,
and we can certainly do better.
And there are examples of those projects occurring today
because of categorical exclusions, or other ways to do it that
they have figured out. In our private lands we have some, as
well, up in the Sierra Nevadas. We don't have to abide by some
of these things, and we go in with a masticator or proper
thinning methods and take care of the land so our cattle can
graze and so forth, which, at a minimum, our easements, our
roadways, our critical infrastructure, our watersheds--50
percent of our watersheds in the country originate on public
land. They have to be protected, not incinerated.
The Chairman. The gentleman's time has expired.
Mr. Veerkamp, I appreciate your enthusiastic answer there.
And Mr. McClintock, I have visited South Lake Tahoe, and I
have seen the results on the ground of a healthy forest and a
safe community because of the work that you have done.
I now recognize the gentleman from California for 5
minutes, Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman. I want to start with
just a little bit of fact-checking. We hear so much
scapegoating of NEPA every time this subject comes up, and we
hear a lot of fake examples to justify it.
There is probably no greater poster child for the
hollowness of some of this NEPA scapegoating than Sites
Reservoir, which came up in the Chairman's opening remarks.
Now, you would have to know nothing about Sites Reservoir to
conclude that it is a NEPA problem and that it is an example of
why we need to dramatically change NEPA.
The truth is--and I am familiar with Sites for many, many
years of California water work--this is a project that has been
resizing and reinventing itself for years to try to pencil out,
economically. It is desperately trying to qualify for
California water bond money that requires public benefits. So,
they are constantly reimagining what kind of benefits they
might be able to offer. And even still, even while stretching
the state and federal dollars that might support it, they can't
find folks willing to pay for the water. And that has been what
is holding up Sites Reservoir, not even close to a NEPA
problem. If anything, it might be a socialism problem, the kind
of socialism some folks like. But it is not a NEPA problem.
Mr. Chairman, you also mentioned that $1 billion that we
put into streamlining--because we do care about moving clean
energy faster--that it hasn't changed anything. Well, I think
the Chairman knows that was part of the Inflation Reduction Act
that was only passed a few months ago. Give it a chance. I
think it can and will move projects faster. That was the whole
point.
And, Mr. Chairman, you have had great fun with the empty
chair you have set up for CEQ Director Mallory. You would have
a point if this Majority had followed the rules, the long-
standing tradition of providing executive branch witnesses 14
days of legislative text review. You have a bill here that
applies to 80 different Federal agencies. And my understanding
is you gave her less than a week. You violated our own
Committee Rules and House Rules by giving the Democratic
Minority less than a week to read this bill, too.
So, look, I would join you in criticizing----
Mr. Graves. Would the gentleman yield?
Mr. Huffman. No, I have limited time, Mr. Graves. I am
happy to take it up on your time.
So, in any event, there is nothing new here. That is the
good news. Even though we didn't have the required amount of
time to review the bill, there is absolutely nothing new. It is
a rehash of long-standing Republican attempts to gut NEPA--
repackaged, I guess, as a climate and energy policy platform
now. It is a long history of these things. Prior incarnations
of this zombie legislation have been introduced in previous
Congresses by Mr. Gosar, by Ms. Cheney, Mr. Pearce, Mr. Flores,
and Mr. Denham.
And it is interesting. I know these bills come from
Republican colleagues whose environmental voting scores are so
low they have to be measured on the Kelvin scale, but they are
great recyclers. So, I want to give credit where credit is due,
because you have recycled this idea time and time again.
Mr. Carr, I appreciate the work that rural utilities do. I
appreciate you being here. And I just want to ask you about the
Cardinal Hickory Transmission Line. My understanding is the
preferred route that was chosen does go through a Federal
wildlife refuge. That is a very significant part of the
Mississippi Flyway. And I am told that, as early as 2012, that
refuge informed your cooperative that you should find a non-
refuge crossing alternative, and that that was known long ago.
My understanding is that you also declined to include a non-
refuge crossing alternative in the NEPA document.
I am just wondering if that is true, and why you wouldn't
at least include an alternative that didn't cross through the
refuge, even if it is not viable. Including it and studying it
would seem to comply with NEPA and let you move forward.
Mr. Carr. Yes, certainly, Dairyland and our project
partners were engaged in the study many years back. You are
correct, it goes back many years.
My understanding is that the study looked at numerous
alternatives to crossing the Upper Mississippi National
Wildlife Refuge. And, in fact, again, we are talking about a
refuge that stretches roughly 200-and-some miles, north to
south. It is an enormous refuge. And to cross the Mississippi
River, the routing is a very complex subject.
My understanding is the project looked at trying to
minimize the impact in terms of the crossing, and ultimately
even is considering--they are trying to reduce the impact on
the refuge, and condense multiple crossings into a single
point.
So, I understand and respect your concerns. I believe they
conducted significant, robust analysis of alternatives.
Mr. Huffman. All right. Well, I thank the witness.
And Mr. Chairman, I know I am out of time, so I just want
to enter a few things into the record, hopefully by unanimous
consent.
I would like to propose entering this article from the New
York Times from about a week ago. It is a deep dive on what is
actually holding up clean energy and utility upgrade projects,
one of the more in-depth pieces we have ever seen. It is all
about FERC and the interconnection queue. Not a word about
NEPA, but I would like to enter that in the record, with
unanimous consent.
The Chairman. Without objection.
[The information follows:]
Wind and Solar Energy Projects Risk Overwhelming America's Antiquated
Electrical Grids
New York Times, February 23, 2023 by Brad Plumer
The U.S. Has Billions for Wind and Solar Projects.
Good Luck Plugging Them In.
An explosion in proposed clean energy ventures has overwhelmed the
system for connecting new power sources to homes and businesses.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsPouring concrete for a wind turbine in Nebraska. More than
8,100 energy projects were waiting for permission to connect to
electric grids at the end of 2021. Credit--Walker Pickering for The New
York Times
Plans to install 3,000 acres of solar panels in Kentucky and Virginia
are delayed for years. Wind farms in Minnesota and North Dakota have
been abruptly canceled. And programs to encourage Massachusetts and
Maine residents to adopt solar power are faltering.
The energy transition poised for takeoff in the United States amid
record investment in wind, solar and other low-carbon technologies is
facing a serious obstacle: The volume of projects has overwhelmed the
nation's antiquated systems to connect new sources of electricity to
homes and businesses.
So many projects are trying to squeeze through the approval process
that delays can drag on for years, leaving some developers to throw up
their hands and walk away.
More than 8,100 energy projects--the vast majority of them wind, solar
and batteries--were waiting for permission to connect to electric grids
at the end of 2021, up from 5,600 the year before, jamming the system
known as interconnection.
That's the process by which electricity generated by wind turbines or
solar arrays is added to the grid--the network of power lines and
transformers that moves electricity from the spot where it is created
to cities and factories. There is no single grid; the United States has
dozens of electric networks, each overseen by a different authority.
PJM Interconnection, which operates the nation's largest regional grid,
stretching from Illinois to New Jersey, has been so inundated by
connection requests that last year it announced a freeze on new
applications until 2026, so that it can work through a backlog of
thousands of proposals, mostly for renewable energy.
It now takes roughly four years, on average, for developers to get
approval, double the time it took a decade ago.
And when companies finally get their projects reviewed, they often face
another hurdle: the local grid is at capacity, and they are required to
spend much more than they planned for new transmission lines and other
upgrades.
Many give up. Fewer than one-fifth of solar and wind proposals actually
make it through the so-called interconnection queue, according to
research from Lawrence Berkeley National Laboratory.
``From our perspective, the interconnection process has become the No.
1 project killer,'' said Piper Miller, vice president of market
development at Pine Gate Renewables, a major solar power and battery
developer.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsA building that formerly housed transformers at the Brayton
Point Power Station, a decommissioned coal plant that is being
repurposed to link a wind farm to the Massachusetts power grid.
Credit--Simon Simard for The New York Times
After years of breakneck growth, large-scale solar, wind and battery
installations in the United States fell 16 percent in 2022, according
to the American Clean Power Association, a trade group. It blamed
supply chain problems but also lengthy delays connecting projects to
the grid.
Electricity production generates roughly one-quarter of the greenhouse
gases produced by the United States; cleaning it up is key to President
Biden's plan to fight global warming. The landmark climate bill he
signed last year provides $370 billion in subsidies to help make low-
carbon energy technologies--like wind, solar, nuclear or batteries--
cheaper than fossil fuels.
But the law does little to address many practical barriers to building
clean energy projects, such as permitting holdups, local opposition or
transmission constraints. Unless those obstacles get resolved, experts
say, there's a risk that billions in federal subsidies won't translate
into the deep emissions cuts envisioned by lawmakers.
``It doesn't matter how cheap the clean energy is,'' said Spencer
Nelson, managing director of research at ClearPath Foundation, an
energy-focused nonprofit. ``If developers can't get through the
interconnection process quickly enough and get enough steel in the
ground, we won't hit our climate change goals.''
Waiting in line for years
In the largest grids, such as those in the Midwest or Mid-Atlantic, a
regional operator manages the byzantine flow of electricity from
hundreds of different power plants through thousands of miles of
transmission lines and into millions of homes.
Before a developer can build a power plant, the local grid operator
must make sure the project won't cause disruptions--if, for instance,
existing power lines get more electricity than they can handle, they
could overheat and fail. After conducting a detailed study, the grid
operator might require upgrades, such as a line connecting the new
plant to a nearby substation. The developer usually bears this cost.
Then the operator moves on to study the next project in the queue.
This process was fairly routine when energy companies were building a
few large coal or gas plants each year. But it has broken down as the
number of wind, solar and battery projects has risen sharply over the
past decade, driven by falling costs, state clean-energy mandates and,
now, hefty federal subsidies.
``The biggest challenge is just the sheer volume of projects,'' said
Ken Seiler, who leads system planning at PJM Interconnection. ``There
are only so many power engineers out there who can do the sophisticated
studies we need to do to ensure the system stays reliable, and everyone
else is trying to hire them, too.''
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsThe climate bill President Biden signed last year provides $370
billion in subsidies for low-carbon technologies like wind, solar,
nuclear and batteries. Credit--Kenny Holston for The New York Times
PJM, the grid operator, now has 2,700 energy projects under study--
mostly wind, solar and batteries--a number that has tripled in just
three years. Wait times can now reach four years or more, which
prompted PJM last year to pause new reviews and overhaul its processes.
Delays can upend the business models of renewable energy developers. As
time ticks by, rising materials costs can erode a project's viability.
Options to buy land expire. Potential customers lose interest.
Two years ago, Silicon Ranch, a solar power developer, applied to PJM
for permission to connect three 100-megawatt solar projects in Kentucky
and Virginia, enough to power tens of thousands of homes. The company,
which often pairs its solar arrays with sheep grazing, had negotiated
purchase options with local landowners for thousands of acres of
farmland.
Today, that land is sitting empty. Silicon Ranch hasn't received
feedback from PJM and now estimates it may not be able to bring those
solar farms online until 2028 or 2029. That creates headaches: The
company may have to decide whether to buy the land before it even knows
whether its solar arrays will be approved.
``It's frustrating,'' said Reagan Farr, the chief executive of Silicon
Ranch. ``We always talk about how important it is for our industry to
establish trust and credibility with local communities. But if you come
in and say you're going to invest, and then nothing happens for years,
it's not an optimal situation.''
PJM soon plans to speed up its queues--for instance, by studying
projects in clusters rather than one at a time--but needs to clear its
backlog first.
`Imagine if we paid for highways this way'
A potentially bigger problem for solar and wind is that, in many places
around the country, the local grid is clogged, unable to absorb more
power.
That means if a developer wants to build a new wind farm, it might have
to pay not just for a simple connecting line, but also for deeper grid
upgrades elsewhere. One planned wind farm in North Dakota, for example,
was asked to pay for multimillion-dollar upgrades to transmission lines
hundreds of miles away in Nebraska and Missouri.
These costs can be unpredictable. In 2018, EDP North America, a
renewable energy developer, proposed a 100-megawatt wind farm in
southwestern Minnesota, estimating it would have to spend $10 million
connecting to the grid. But after the grid operator completed its
analysis, EDP learned the upgrades would cost $80 million. It canceled
the project.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsA solar battery energy storage site in the Bronx, part of a
test program to support New York's transition to renewable energy
sources. Credit--Hiroko Masuike/The New York Times
That creates a new problem: When a proposed energy project drops out of
the queue, the grid operator often has to redo studies for other
pending projects and shift costs to other developers, which can trigger
more cancellations and delays.
It also creates perverse incentives, experts said. Some developers will
submit multiple proposals for wind and solar farms at different
locations without intending to build them all. Instead, they hope that
one of their proposals will come after another developer who has to pay
for major network upgrades. The rise of this sort of speculative
bidding has further jammed up the queue.
``Imagine if we paid for highways this way,'' said Rob Gramlich,
president of the consulting group Grid Strategies. ``If a highway is
fully congested, the next car that gets on has to pay for a whole lane
expansion. When that driver sees the bill, they drop off. Or, if they
do pay for it themselves, everyone else gets to use that
infrastructure. It doesn't make any sense.''
A better approach, Mr. Gramlich said, would be for grid operators to
plan transmission upgrades that are broadly beneficial and spread the
costs among a wider set of energy providers and users, rather than
having individual developers fix the grid bit by bit, through a chaotic
process.
There is precedent for that idea. In the 2000s, Texas officials saw
that existing power lines wouldn't be able to handle the growing number
of wind turbines being built in the blustery plains of West Texas and
planned billions of dollars in upgrades. Texas now leads the nation in
wind power. Similarly, MISO, a grid spanning 15 states in the Midwest,
recently approved $10.3 billion in new power lines, partly because
officials could see that many of its states had set ambitious renewable
energy goals and would need more transmission.
But this sort of proactive planning is rare, since utilities, state
officials and businesses often argue fiercely over whether new lines
are necessary--and who should bear the cost.
``The hardest part isn't the engineering, it's figuring out who's going
to pay for it,'' said Aubrey Johnson, vice president of system planning
at MISO.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsWind turbines in North Dakota, where some developers have
canceled projects after facing rising costs to connect to the grid.
Credit--Brandon Thibodeaux for The New York Times
Climate goals at risk
As grid delays pile up, regulators have taken notice. Last year, the
Federal Energy Regulatory Commission proposed two major reforms to
streamline interconnection queues and encourage grid operators to do
more long-term planning.
The fate of these rules is unclear, however. In December, Richard
Glick, the former regulatory commission chairman who spearheaded both
reforms, stepped down after clashing with Senator Joe Manchin III,
Democrat of West Virginia, over unrelated policies around natural gas
pipelines. The commission is now split between two Democrats and two
Republicans; any new reforms need majority approval.
If the United States can't fix its grid problems, it could struggle to
tackle climate change. Researchers at the Princeton-led REPEAT project
recently estimated that new federal subsidies for clean energy could
cut electricity emissions in half by 2030. But that assumes
transmission capacity expands twice as fast over the next decade. If
that doesn't happen, the researchers found, emissions could actually
increase as solar and wind get stymied and existing gas and coal plants
run more often to power electric cars.
Massachusetts and Maine offer a warning, said David Gahl, executive
director of the Solar and Storage Industries Institute. In both states,
lawmakers offered hefty incentives for small-scale solar installations.
Investors poured money in, but within months, grid managers were
overwhelmed, delaying hundreds of projects.
``There's a lesson there,'' Mr. Gahl said. ``You can pass big,
ambitious climate laws, but if you don't pay attention to details like
interconnection rules, you can quickly run into trouble.''
______
Mr. Huffman. Thank you. Similarly, there is a study
recently done here in The Environmental Law Reporter that takes
a deep dive into major projects that required EISs, and looks
at what held them up in terms of speeding the process along. It
recommends that insufficient agency capacity to do NEPA work is
the No. 1 culprit, recommends we solve that, which we have done
by putting $1 billion into it.
So, I would like to enter this study into the record, as
well.
The Chairman. Without objection.
[The information follows:]
PLAYING THE LONG GAME:
EXPEDITING PERMITTING WITHOUT COMPROMISING PROTECTIONS
Environmental Law Reporter, November 2022 by Jamie Pleune
We are going to take the most aggressive action ever, ever, ever to
confront the climate crisis and increase our energy security, ever in
the whole world . . . and that is not hyperbole, that's a fact,''
President Joe Biden told a crowd of solar industry players gathered on
the White House lawn to celebrate the one-month anniversary of the
Inflation Reduction Act (IRA).1 Earlier that week, he issued
an Executive Order reaffirming the national climate goal to achieve a
carbon pollution-free energy sector by 2035.2
These lofty goals have material implications (pun intended). Clean
energy technologies utilize more minerals than their fossil fuel-based
counterparts.3 According to a recent report from the
International Energy Association, ``[a] typical electric car requires
six times the mineral inputs of a conventional car, and an onshore wind
plant requires nine times more mineral resources than a gas-fired power
plant.''4 Under a two-degree scenario, production of
graphite, lithium, and cobalt will need to be increased by more than
450% by 2050 from 2018 levels to meet demand from energy storage
technologies.5
Other base materials, like aluminum and copper, have a smaller
percentage increase, but the absolute production figures are
significant.6 For example, over the past 5,000 years, an
estimated 550 million tons of copper have been produced. The world will
need approximately the same amount in the next 25 years to meet global
demand.7 This demand has led to the unavoidable conclusion
that clean energy means more mineral production, which will involve new
mines, mine expansions, innovative recycling techniques, and
imaginative reuse technologies.
The haste to build new domestic mines in response to these demands
has stoked calls for permit reform.8 Sen. Joe Manchin (D-W.
Va.) made ``permitting reform'' a condition of his support of the
IRA,9 and President Biden recently affirmed his commitment
to the deal.10 As these efforts progress, some fear that
permit reform means quick approval of each permit application and a
loosening of environmental standards in the name of expediting mineral
production.11
Society faces an unavoidable conundrum.12 Green energy
demands more minerals, which ultimately means building new mines and
expanding existing mines throughout the world. But not every mine
permit should be approved as submitted. Basic environmental, health,
and safety standards should still be enforced. The permit process
necessarily involves multiple authorities, each enforcing their
applicable standards. Rigorous permit review identifies opportunities
to eliminate, reduce, or mitigate risk--whether that risk threatens
workers, communities, or the environment (often all three). The
increased demand for minerals should not overshadow the productive
purposes served by permitting.
Accepting unfettered environmental degradation in exchange for
clean energy would achieve short-term gains in exchange for long-term
pain. The unrelenting challenges caused by climate change provide an
almost daily reminder that downplaying environmental risks does not
make them go away.
There are opportunities to improve permitting efficiency without
compromising important health and safety standards. This Article makes
three recommendations, each of which can be implemented without new
regulations or legislation. To begin, Part I provides brief background
on the federal government's recent focus on critical mineral supply and
production issues. Part II distinguishes between productive and
unproductive causes of delay in the permitting process. Part III
identifies causes of unproductive delay in the existing hard-rock mine
permitting process, by relying upon investigative studies and empirical
evidence.
Part IV lays out my three practical recommendations to reduce or
eliminate unproductive delay. Although these recommendations do not
rely on regulatory or statutory changes, they do require funding and
support from the U.S. Congress, as well as cooperation from state,
tribal, and local governments. Each of these levels of government
should work together to strengthen and improve the government's
execution of the critical mineral permitting process by focusing on the
real causes of delay. This approach is one way to expedite the
transition to clean energy without sacrificing the long game.
I. Recent Federal Attention on Critical Minerals and Permitting Reform
Whether the objective is national security or transitioning to
green energy, securing a stable supply of critical minerals has
received focused attention from the White House during the past several
years.13 President Donald Trump focused on expanding
domestic mineral production. In December 2017, he issued Executive
Order No. 13817, A Federal Strategy to Ensure Secure and Reliable
Supplies of Critical Minerals.14 This Order blamed
``permitting delays'' and ``the potential for protracted litigation
regarding permits'' as limitations to developing mineral deposits
across the United States.15
The Order committed to ``streamlining leasing and permitting
processes to expedite exploration, production, processing,
reprocessing, recycling, and domestic refining of critical
minerals.''16 A report drafted in response to this Order
explicitly blamed federal permitting for reduced mineral production in
the United States: ``Unfortunately, federal permitting and land
management policies have inhibited access to and the development of
domestic critical minerals, which has contributed to increased reliance
on foreign sources of minerals.''17
A few years later, President Trump issued Executive Order No.
13953, declaring a national emergency caused by ``undue reliance on
critical minerals . . . from foreign adversaries.''18 That
Order also announced that the United States ``must broadly enhance its
mining and processing capacity, including for minerals not identified
as critical minerals and not included within the national emergency''
declaration.19 It instructed the Secretaries of the
Interior, Agriculture, Commerce, and Army and the Administrator of the
U.S. Environmental Protection Agency (EPA) to ``use all available
authorities to accelerate the issuance of permits and the completion of
projects in connection with expanding and protecting the domestic
supply chain for minerals.''20
When President Biden took office, he shifted the focus from
domestic production to ensuring a secure supply chain for a clean
energy economy. For example, he issued Executive Order No. 14017 on
strengthening America's supply chains.21 With respect to
critical minerals, the Order instructed the Secretary of Defense to
issue a report identifying risks in the supply chain for critical
minerals, strategic materials,22 and rare earth elements and
to describe and update work done pursuant to Executive Order No.
13953.23
The report, issued on June 6, 2021,24 recognized that
the transition to green technology would intensify the need for
strategic and critical minerals.25 It also provided a more
nuanced view of permit reform. It acknowledged the historic
environmental, safety, and health risks in the mining industry. ``Given
the environmental and labor legacy of mining, increased mineral
production and reclamation activities must be held to modern
environmental standards, require best practice labor conditions, and
consultation with affected communities, including Tribal Nations in
government-to-government consultation.''26
One does not have to look far to find the legacy of past mining
practices. According to the U.S. Government Accountability Office
(GAO), federal agency databases contain at least 140,652 identified
abandoned hard-rock mine features, of which 60% pose a physical or
environmental threat.27 Additionally, officials within 13
western states identified 246,000 abandoned hard-rock mine features, of
which 115,000 pose a physical threat and 11,000 pose an environmental
threat.28 In 2019, the Associated Press examined public
records related to mining sites under federal oversight, some of which
contained multiple individual mines.29
The records showed that, on average, more than 50 million gallons
of contaminated wastewater streams daily from these sites, often
running untreated into nearby groundwater, rivers, or
ponds.30 In addition to this relentless drip of water
pollution, some mines also pose threats of catastrophic failure, like
the accidental release of three million gallons of mustard-colored mine
sludge from the Gold King Mine in Colorado.31 According to
GAO, between 2008 and 2017, the federal government spent an average of
$287 million annually to address physical safety and environmental
hazards at abandoned hard-rock mines.32 Federal officials
estimated that it would cost billions more to address these mines in
the future.33
On November 15, 2021, Congress passed the Infrastructure Investment
and Jobs Act (IIJA).34 The Act included several provisions
focused on critical minerals and investments to jump-start a domestic
clean energy supply.35 Section 40206, Critical Minerals
Supply Chains and Reliability, directs the Secretaries of the Interior
and Agriculture to submit a report to Congress identifying ``additional
measures, including regulatory and legislative proposals, if
appropriate, that would increase the timeliness of permitting
activities for the exploration and development of domestic critical
minerals.''36 In preparation for this report, the U.S.
Department of the Interior issued a request for information seeking,
among other things, recommendations on ``opportunities to reduce time,
cost, and risk of permitting without compromising . . . strong
environmental and consultation benchmarks.''37
Some analysts have suggested that there is an inherent tension
between stringent environmental standards and efficient permitting. For
example, David Blackmon, a Forbes columnist, wryly opined, ``the
central feature in any bill designed to speed up federal permitting for
energy projects will come down to a proposition to lessen environmental
protections in order to . . . save the environment?''38
This schadenfreude-laced summary conflates two separate issues that
permit reform proposals must address. The first is obvious. Can we
improve efficiency, eliminate redundancy, and decrease the cost and
time spent navigating the permit process? The answer to that question
is yes. Moreover, achieving this result is feasible. Recent research
shows that many NEPA analyses are completed efficiently.39
Part III of this Article focuses on recommendations to make the
existing permit system more efficient.
The second issue is more nuanced. Should some mine permit proposals
be modified or denied because the risks (health, safety, or
environmental) exceed the rewards? The answer to this question should
also be yes. Permit reform should not eliminate the ability to say
``no.'' This suggests that some delays may be productive. The next
section explores this concept.
II. Distinguishing Between Productive and Unproductive Delays
Mining is dangerous. Permitting ensures that mines are built safely
and that risks to mine workers, society, and the environment are
reduced or mitigated as much as possible. Hard-rock mining involves
enormous risk. Whether the ore deposit is accessed by surface (open
pit) or underground mining, most mines require drilling, blasting,
mucking (loading), and transporting (hauling).40 As mining
progresses, open pits are excavated on the surface and voids are
created where the in-place ore was removed. Continued mining results in
larger mines, along with growing waste dumps, heap leach piles,
tailings ponds, and so on.41 The ore removed from the earth
must be crushed or ground into smaller particles, which are then
subjected to various physical or chemical processes to separate the
valuable minerals from the unwanted waste ore.42
Alternatively, metals may be extracted through a leaching process,
such as a cyanide solution.43 The waste minerals are
routinely disposed of in a tailings pond. Although tailings dams,
ponds, and leach pads should be carefully designed to high standards,
the potential impacts resulting from release or discharge of tailings
or leached rock can be devastating. For example, defective tailings
ponds at the Buenavista del Cobre copper mine in Sonora, Mexico,
released more than 10 million gallons of toxic chemicals into the
Bacanuchi River, a tributary of the Sonora River. This 2014 event left
approximately 25,000 people without clean water, ruining crops and
contaminating the aquatic ecosystem with heavy metals.44
``A review of 14 copper porphyry mines in the U.S. (accounting for
nearly 90% of U.S. production) found the mines were often associated
with water pollution from acid mine drainage and accidental releases of
toxic materials.''45 Tailings failures are ``the most common
source of mining accidents.''46 Additionally, some mining
companies go out of business without reclaiming their sites. In 2012,
there were 156 hard-rock mining Superfund sites in the United
States.47 The permitting process is designed to mitigate the
safety, health, and environmental risks that are inherent to hard-rock
mining.
Many critics of the permitting process cite controversial projects
or permit denials as proof that the permitting system is
broken.48 Large projects with irreversible environmental
consequences, like Pebble Mine, Twin Metals, PolyMet, and Resolution
Copper, often face fierce opposition from people who will be affected
by the project's negative consequences.49 The delays faced
by these projects are caused by a conflict in values. Pebble Mine in
southwest Alaska presents an irreversible choice between copper and
commercial fishing.50 It is opposed by more than 80% of the
Native Alaska population, as well as many commercial fishermen, because
acid mine drainage threatens Bristol Bay, the world's largest sockeye
salmon fishery.51
Twin Metals, outside of Ely, Minnesota, presents an irreversible
choice between copper and drinking water protected by the Boundary
Waters Canoe Area Wilderness.52 It also threatens culturally
important and treaty-protected wild rice waters, wetlands, and aquatic
life.53 These competing values have inspired dueling
legislative overrides.54 Nearby, the PolyMet mine faces
opposition in part because the earthen upstream design it proposed for
its tailings is the same design used for the Brumadinho dam in Brazil
that failed in 2019, killing 270 people and spilling 11.7 million cubic
meters of toxic mud downstream.55
In Arizona, the Resolution Copper project proposes to build the
largest and deepest mine in the United States using a mining technique
called block caving.56 This proposal threatens lands
considered sacred by local tribes.57
The permitting delays faced by each of these projects are not
caused by inefficiency. They are caused by legitimate disagreements,
value judgments, the enforcement of environmental standards, the
democratic process of public comment, and the right of communities to
protect themselves against being forced to shoulder undue environmental
degradation for the benefit of others.
Although frustrating for mine proponents and investors, some delays
in permitting may be evidence that the process is working. The
environmental analysis required during the permitting process may
identify potential issues that would have otherwise escaped
consideration, and drive a reassessment of options and impacts before
an irretrievable commitment of resources occurs. Slower projects may
reflect iterative changes to improve the proposed action or minimize
impacts. Delays that mitigate safety and environmental risks or stop
socially unacceptable projects may be inconvenient for investors, but
they are ultimately productive for society.
To understand this concept, it is helpful to think about a
different regulated activity that is inherently risky--aviation. Before
departing the planet, every pilot--both commercial and recreational--
must conduct a preflight inspection to ensure the safety of the
aircraft.58 This involves looking carefully for tiny hints
that could portend a structural failure. Careful fulfillment of this
duty may result in delay, while a dilatory attitude could be
catastrophic. Consider the pilot who failed to notice missing cowling
fasteners during his preflight inspection.59 Careful
observation would have resulted in brief delay to fix the problem.
Instead, the cowling detached from the aircraft during flight, forcing
an emergency landing that resulted in a brushfire that consumed the
plane.
Thus, diligent fulfillment of the duty to notice safety risks or
structural anomalies may be a productive source of delay. Permitting
authorities are also tasked with the duty of diligently ensuring that
the proposed mining operations are well-designed and safe. Noticing
safety risks or structural anomalies is a productive source of delay
that could avoid catastrophic accidents.
Pilots must also mitigate risks through preflight planning, which
includes consideration of the proposed route, anticipated weather, fuel
requirements, runway lengths, known traffic delays, and performance
limitations.60 Changing conditions with any one of these
factors may delay, cancel, or reroute a proposed flight. Although
inconvenient, these delays are ultimately productive, because they
eliminate, reduce, or mitigate risk. Often a decision to delay or
reroute a flight may be based on incomplete information. It is
impossible to accurately forecast the future. Moreover, new or changing
conditions may require reconsideration of an earlier decision.
These possibilities must be weighed against the all-too-human
desire to reach the final destination without delay. As the Kobe Bryant
accident tragically illustrated, failure to appreciate the gravity of
these risks, or to respond to changing conditions, can be
fatal.61 One board member of the National Transportation
Safety Board investigation committee investigating the Bryant flight
observed that the pilots should not only be measured by whether they
complete a flight. ``Perhaps a better way to look at it is that
professional pilots aren't paid to fly--they're paid to say no when
conditions warrant. If . . . [pilots] look at it this way, perhaps we
will have fewer crashes.''62
The same principles apply to permitting decisions. Permitting
authorities are tasked with the responsibility of mitigating risks. New
information may intensify to an unacceptable level the potential risk
associated with a project. In these cases, the permitting authority
should have confidence to say ``no.'' When operated effectively, this
process avoids unacceptable environmental degradation and catastrophic
accidents. Permit reform should not create a system of rubber-stamping.
It must include the ability to say ``no'' when conditions warrant.
Saying ``no'' to unacceptably risky proposals creates delay, but in the
long run, that delay is socially productive.
III. Identifying Unproductive Causes of Delay in the Permitting Process
Hard-rock mining operations consist of four primary stages: (1)
exploration (locating and defining the extent and value of mineral
deposits); (2) development (completing the mine plan approval process,
including obtaining necessary permits); (3) production (extracting the
minerals); and (4) reclamation (reshaping disturbed areas and
controlling for any toxic materials).63 The Bureau of Land
Management (BLM) and U.S. Forest Service oversee hardrock mining
operations on public lands and national forests and grasslands,
respectively.
Many federal, state, and local statutes affect mining operations,
and a proposed mine must obtain several different permits from multiple
different agencies. For example, when studying 68 proposed mine plans
submitted between 2010 and 2014, GAO identified six different
categories of federal permits and authorizations and seven categories
of state and local permits and authorizations.64 These range
from air quality, hazardous waste management, and workplace safety
operations to dam structures and the use of explosives.65
As part of the permitting process, federal agencies must conduct an
analysis under the National Environmental Policy Act (NEPA)
66 of potential impacts to the environment, human health,
and cultural and historical resources. NEPA is a far-reaching
procedural statute that applies to all ``major Federal actions
significantly affecting the quality of the human
environment.''67 NEPA's implementing regulations utilize a
tiered decisionmaking framework. Decisions that will have a significant
impact on the environment undergo searching review through an
environmental impact statement (EIS).68 The EIS discloses
adverse environmental impacts and considers alternatives to the
proposed project.69
GAO estimated that EISs constitute about 1% of all NEPA
decisions.70 More benign projects with uncertain
environmental impacts undergo a less thorough analysis referred to as
an environmental assessment (EA).71 GAO estimates that less
than 5% of decisions government-wide are analyzed in an
EA.72 Projects with a presumptively insignificant effect on
the environment undergo a truncated analysis through a categorical
exclusion (CE).73 According to GAO's estimates, these
truncated analyses constitute 95% of NEPA analyses.74
NEPA does not operate in a vacuum. Since its passage 51 years ago,
it has been incorporated into the fabric of the administrative state
and often provides the analytical structure justifying decisions made
by federal agencies, including permit approvals or denials. As the
Congressional Research Service explains, ``[m]ost agencies used NEPA as
an umbrella statute--that is, a framework to coordinate or demonstrate
compliance with any studies, reviews, or consultations required by any
other environmental laws.''75 For this reason, even though
the requirements of NEPA are only one part of a much larger, amorphous
system of permits, the NEPA process and the permitting process are
often conflated.
Despite its importance, little is known about how NEPA operates.
When asked to review various NEPA compliance issues, including (1) the
number and type of NEPA analyses conducted by agencies, (2) costs and
benefits of completing the analyses, and (3) the frequency and outcomes
of litigation, GAO concluded that very little information exists
regarding these issues.76 Absent information, most
recommendations for NEPA reform have historically been loosely moored
to empirical data and focused primarily on the most complex decisions
that undergo the most rigorous review, even though these decisions
constitute only a small fraction of NEPA decisions. Because of its
central role in the permitting process, understanding how NEPA is
implemented and identifying sources of delay within the NEPA process is
critical to designing effective permit reform.
Reviews of the permitting process indicate that only a small
percentage of projects encounter extensive delays. GAO issued a report
in 2016 studying hard-rock mine permit processing times.77
Between 2010 and 2014, BLM and the Forest Service approved 68 mine
plans of operations. The majority (55%) were processed in less than 18
months, and 63% were processed in under two years.78 This
appears to indicate that permit applications can be processed
efficiently. The remaining 37% were spread out over a wide time frame,
with six applications taking longer than four years.
GAO's findings regarding hard-rock mine permit processing times are
consistent with the results of empirical research conducted by a team
from the Wallace Stegner Center in Utah, including this author. They
investigated NEPA decisionmaking times within the Forest Service,
analyzing more than 41,000 Forest Service projects that required NEPA
analysis between 2004 and 2020.79 Their research revealed
that the majority of decisions were made within a reasonable time frame
for the complexity of the project; however, a small percentage of
projects consistently took much longer, regardless of the complexity of
the project.80 They sought to identify what causes some
projects to drag on, while others are completed efficiently. Because
NEPA is a part of the permitting process, the details of their
empirical research provide valuable insight into potential causes of
delay in hard-rock mine permitting.
The Stegner team also observed that most NEPA analyses are
completed within a predictable time frame, consistent with the level of
analysis required. However, a small percentage of projects get bogged
down at every level of review. For example, between 2004 and 2020, the
mean time to complete an EIS was 2.8 years.81 Turning to
EAs, the mean time for completion was 1.2 years, and the mean time to
complete a CE was slightly under four months.82 These
average time frames predictably correlate to the rigor of the analysis
required by NEPA's analytical structure.
However, the Stegner team also observed that some projects take
extraordinarily long, regardless of the level of analysis. Table 1
below compares the median time for completion at every level of review
with the average time for projects in the slowest 10%. Notably, at each
level of review, the slowest 10% of decisions take longer than the
median time to complete a more rigorous level of analysis. For example,
the slowest 10% of CEs take 1.3 years, while the median time to
complete an EA is 1.2 years. This demonstrates that a less rigorous
level of analysis does not automatically generate a faster decision.
Table 1. Comparison of Median Completion Times for Select Percentiles
by Level of Analysis
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsThe Stegner team also observed that a large percentage of
decisions are made efficiently at each level of review. Table 2 below
compares the average time for the fastest 25% of decisions against the
median time for completion at each level of review. The degree of
achievable efficiency is even more apparent when considering the
average times for the fastest 10% of decisions (also depicted below).
On average, the fastest 25% of decisions are completed twice as quickly
as the median time for completion at every level of review. The fastest
10% of decisions show even greater efficiency. This empirical evidence
demonstrates that analytical rigor can be accomplished efficiently,
even at the most searching level of analysis.
Table 2. Comparison of Fastest 10% and 25% of Completion Times With the
Standard Median Completion Time for Each Level of Analysis
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsThese observations are important for designing permit reform
for two reasons. First, they demonstrate that it is not necessary to
sacrifice analytical rigor in order to achieve efficiency.83
The fastest 25% of EISs are completed more quickly than the slowest 25%
of EAs, and the fastest 25% of EAs are completed more quickly than the
slowest 25% of CEs.84 Second, decisions subject to a
truncated analysis are not immune to delay. The slowest 10% of CEs took
longer to complete than the fastest 10% of EISs.85
This result begs the question, why are some decisions completed
quickly, while others get bogged down? Despite developing a
multivariate regression analysis that analyzed four different factors,
including the complexity of each project,86 the Stegner team
could not accurately predict which projects would proceed efficiently
and which ones would encounter delays using NEPA-specific
information.87 This led them to conclude that factors
outside the analytical requirements of NEPA contribute significantly to
project delays.88 Causes of delay included inadequate agency
budgets, a lack of qualified staff, staff turnover, delays receiving
information from permit applicants, and compliance with other
laws.89
The GAO report on hardrock mine permitting made similar
observations, identifying 13 causes of delay and the amount of time
associated with each factor.90 The second most common source
of delay was insufficient allocation of resources (e.g., number of
staff, staff expertise, funding, infrastructure, training, and/or
computer technology).91 Another prominent source of delay
was waiting for information from an applicant following a permit
application that was incomplete or vague or responding to a changed
mine plan.92 Other sources of delay were compliance with
other legal requirements and/or ineffective agency coordination or
collaboration during the mine plan review process.93
IV. Recommendations to Reduce Unproductive Causes of Delay
The observations described above suggest that policy changes or
regulatory reforms will not address many of the root causes of delay.
Instead, permit reform should be designed to address identifiable,
unproductive causes of delay. The following subsections provide three
practical recommendations.
A. Recommendation 1: Avoid Delay Caused by Insufficient Agency Capacity
One persistent and overarching cause of delay is insufficient or
inconsistent staff availability.94 According to the GAO,
nsufficient agency staff in certain critical positions caused a
bottleneck in the NEPA review process and increased the length of time
to review the mine permit application.95 This problem is not
new. In 1999, the National Research Council found that ``[s]taff
shortages are likely to be at least partially responsible for the
excessive delays experienced in NEPA reviews and issuance of
permits.''96 The Council went on to note:
Some land management offices report that they have too few
people to conduct inspections, review proposed operating plans,
process appeals, and conduct other required activities. This
concern extends beyond the numbers of people. . . . Offices
responsible for regulating mining projects may not always have
access to the trained and experienced personnel
required.97
In other words, there are two distinct elements to agency capacity:
(1) staff availability and (2) expertise or institutional knowledge.
Both elements affect permitting times. In order to improve permitting
efficiency without compromising environmental protection, agencies must
have both elements--sufficient staff and the necessary expertise.
The long-standing problem of agency capacity has been exacerbated
in recent years. Between 2016 and 2020, BLM reported losing almost 300
senior Washington D.C. office staff who chose to retire or seek other
employment rather than relocate to Colorado.'' The U.S. Fish and
Wildlife Service lost 231 staff scientists. EPA lost almost 750 senior
scientists--one in four environmental specialists--between 2016 and
2020.99 The departure of senior staff resulted in a loss of
expertise and institutional knowledge that cannot be addressed with
entry-level hires. Left unaddressed, the problem of insufficient staff
capacity will affect regulatory efficiency and environmental protection
in the context of hard-rock mining for the foreseeable future.
Accelerating efforts to restore agency capacity, develop expertise,
and restore institutional knowledge are among the fastest ways to
improve permitting efficacy and promote supply chain resiliency. Some
efforts are already underway. For example, to address workforce
challenges within EPA, Congress boosted the Agency's budget by 11.3%
and called upon EPA to ``prioritize efforts to streamline hiring,
support retention, and manage the erosion of expertise stemming from
retirement of senior staff.'' 100 In order to expedite mine
permitting, similar efforts must be undertaken to ensure that other
agencies, like BLM and the Forest Service, have sufficient
knowledgeable and experienced staff members capable of processing
technical and complex applications for a mine permit.
Agency capacity does not only involve people and expertise. It also
includes confidence to make a decision--even if it results in
litigation. The Stegner team observed that litigation risk aversion
causes delay and unwieldy documents.101 Perceived
professional risk associated with litigation caused Forest Service
staff to avoid making controversial decisions for fear of affecting
opportunities for promotion.102
Litigation aversion also caused delay by encouraging staff to
``bulletproof'' NEPA documents by addressing every possible issue,
rather than focusing the analysis on issues that are truly significant
and tailoring the level of analysis to the magnitude of the
issue.103 This overanalysis produces unwieldy, bulky, time-
consuming documents that unnecessarily consume time and scarce agency
resources. GAO made a similar finding regarding delays in the hard-rock
mine permitting process. ``Both BLM and Forest Service officials said
that concerns regarding possible litigation or the implications of case
law have prompted them to conduct additional or more extensive NEPA
analyses during the mine plan review process.'' 104
Other agencies have also recognized that encouraging confident
decisionmaking can produce more efficient decisionmaking. As one NEPA
practitioner in the U.S. Department of Transportation observed,
``perhaps the most effective action agencies can take to increase
efficiencies in the NEPA review process is to get back to the basics
with NEPA and halt efforts to make NEPA documents litigation-proof.''
105 With this in mind, she suggested that agencies avoid
wasteful encyclopedic documents by using their discretion to focus the
analysis, methodology, and depth of discussion as necessary to make an
informed decision.
This can be achieved through transparent analysis, incorporation of
documents by reference, tiering to prior environmental reviews where
appropriate, and exercising discretion in how to best gather and assess
information.106 Although these tools are available, agency
officials must also feel confident using them. An informal culture that
prioritizes litigation avoidance will continue to eschew these
available strategies in favor of bulky, time-consuming bullet-proof
documents.
While decisions should rigorously comply with substantive and
procedural requirements, the fear of litigation should not delay
action. Litigation is rare. Only 0.22% of decisions made under NEPA are
challenged in court.107 An investigation by GAO on the
impact of litigation on Forest Service fuel reduction projects between
2006 and 2008 revealed that only 29 out of 1,415 decisions were
litigated, and litigation only impacted 1% of the lands slated for fuel
reduction.108
In conclusion, responsible critical mineral permitting can be
expedited by increasing agency capacity. This can be done by providing
agencies with the qualified staff and resources they need to complete
environmental analyses and permitting documents, to retain those staff
members throughout the entire permitting process, and to structure
performance incentives that reward prompt deliberation, even where the
project is unpopular and may result in litigation.
B. Recommendation 2: Create Tools That Make the Legal Structure,
Permitting Requirements, and Available Information More
Transparent and Publicly Available
The legal and regulatory structure for hard-rock mining is complex,
multifaceted, and lacks uniformity. Navigating the intricate and
complex array of laws applying to mining operations takes time. Without
clear guidance, this legal structure causes delay. This delay is
evident in the number of vague and incomplete permit applications,
instances of limited or ineffective interagency coordination, and
delays caused by balancing competing legal priorities.109
Simply figuring out what law applies, how to apply the regulatory
standard, and who has authority to issue the relevant permits can be a
daunting task for both agency officials and permit applicants.
Regarding the regulatory structure of hard-rock mine permitting,
the National Research Council observed:
[T]he complexity of various programs can make the system
difficult to understand, approach, and implement efficiently.
As a result, mining regulation, permitting, monitoring,
reclamation, closure, and post-closure becomes a series of
negotiations carried on against a background of regulatory
requirements and programs. This means that governmental
regulators at all levels need a significant degree of
sophistication and training in order to make these programs
efficient and effective. The programs do not--and cannot--
operate in cookbook fashion.110
In other words, implementing a complex regulatory structure
requires institutional knowledge and expertise. Regulators require
``sophistication and training'' to make the programs efficient and
effective. This includes understanding how the overall permitting
process works, the standard to apply to a particular decision, and who
is responsible for making that decision.
Uncertainty about this regulatory backdrop causes two types of
delay. First, conducting research to confirm the permitting process
with each application adds time and creates inefficiencies in the
preparation and review of each application. Second, hard problems
without obvious answers tend to sit on the back of the desk, especially
when there is a fear of repercussion for making the wrong decision.
Reducing procedural and legal uncertainty within this complex labyrinth
will improve efficiency and assist both regulators and applicants.
The current legal and regulatory structure varies by mineral
category, surface/subsurface estate ownership, and with the agency
owning or entity charged with managing surface and subsurface
resources.111 In general, minerals fall within three
categories: saleable, leasable, and locatable (hard-rock). Each
category has different statutory frameworks and regulatory
standards.112 Distinct regulatory standards by mineral
category can cause permitting challenges because the exact same mineral
on federal land may be characterized as locatable or leasable,
depending on whether the land is public or acquired.13
Similarly, otherwise locatable minerals may be leasable when found on
some tribal lands.114
A consequence of this fragmented legal structure is that the same
mineral could be subject to a leasing system or a claim system
depending on whether the lands were acquired, tribal, or
public.115 More complexities arise with private
landownership or where surface and subsurface ownership involves
multiple parties, including states, tribal governments, and private
individuals, and these complexities only increase when split-estate
issues are involved.116
The difference between locatable and leasable minerals has
consequences for land use management. The Federal Land Policy and
Management Act (FLPMA) 117 guides BLM's management of lands
that are subject to both mineral leases and claims as well as nearby
public lands that may be necessary to access or develop minerals.
Management requirements are imposed through its land use planning
requirements, and subject to the duty to administer public lands on the
basis of multiple use and sustained yield.118 Similarly, the
National Forest Management Act (NFMA) informs the Forest Service's
surface management of lands that are subject to mineral leases and
claims as well as lands that must be crossed to access and develop
minerals.119
In contrast, mining operations for locatable minerals are primarily
governed by the General Mining Law of 1872. Land management plans
developed pursuant to FLPMA and the NFMA may directly and severely
restrict a mining claimant's ability to access newly staked claims, to
conduct exploration-phase activities on those claims, and to use
adjacent lands for other mining-related purposes. New management plan
requirements are, however, likely to have less impact on existing
claims. With a few exceptions, such as lands that have been withdrawn
120 and wilderness study areas, BLM's authority to regulate
surface management of locatable mineral operations derives primarily
from its authority to prevent unnecessary or undue degradation of
public lands.121
Once a claim or lease has been obtained, access to the minerals
secured, and exploration has demonstrated the viability of the
operation, the miner will still need to obtain mining plan approval as
well as numerous other environmental and land use approvals. Many
states exercise delegated statutory authority over aspects of mine
permitting.122 Some federal statutes, like the Clean Water
Act (CWA),123 contain provisions allowing the federal agency
to delegate its permitting authority to the state. In addition to these
federal statutes, state or local laws may also impose additional
permitting requirements, including state environmental review
requirements, like the California Environmental Quality Act. When
reviewing the hard-rock mining permit application process, GAO
identified six categories of federal permits and authorizations and
seven categories of state and local permits and authorizations that
mine operators may need to obtain from entities other than BLM and the
Forest Service.124
This complexity may contribute to the number one source of delay
identified by GAO in the hard-rock mine permitting process--low quality
of information provided in a mine plan.125 According to
officials interviewed for the study, the low quality of information
provided in a mine plan created a challenge in 21 of the 23 locations
studied, and added from one month to seven years to the length of time
to review plans.126 Delays associated with this factor can
be reduced through simple efforts to make permitting information and
requirements more accessible.
1. Create a Mine Permitting Hub With Flow Charts and Environmental
Checklists to Make the Legal Structure More Transparent,
Predictable, and Manageable
In the absence of statutory reforms to simplify and update mining
laws, one way to expedite the permitting process would be to create a
public, geographically organized database of regulations and permitting
requirements (``mine permitting hub'').
A similar resource was created by the U.S. Department of Energy for
renewable energy and bulk transmission project development. The web-
based Regulatory and Permitting Information Desktop (RAPID) Toolkit
collects permitting information, best practices, and reference
material.127 As the RAPID website recognizes,
``[u]ncertainty about the duration and outcome of the permitting
process has been a deterrent to project investment and project
construction.''128 The website aims to provide easy access,
in one location, to permitting and regulatory information for project
development in order to optimize the regulatory process, lower project
costs, and ease investor risk.129
The same challenges face prospective mine permittees. Uncertainty
about the duration and outcome of the permitting process deters project
investment. This is even more true for entities that are exploring
innovative ways to re-mine or reprocess previously mined lands or mine
and mill tailings.130 A publicly available, geographically
organized database of regulatory standards and required permits would
help mineral developers as well as federal, state, and tribal officials
navigate overlapping and interrelated permitting programs.
As part of the mine permitting hub, an analytical flow chart should
be included to help regulatory officials and permit applicants
determine which legal standards apply to a proposed mine, and how
multiple permitting requirements fit together. The Washington State
Governor's Office for Regulatory Innovation and Assistance has
developed multiple, very useful flow charts to assist regulators,
permit applicants, and the public to understand the steps involved in
obtaining common permits.131 Simply creating the flow chart
to identify the various permits that are required, the sequence of
permits, and opportunities for permit coordination may improve
permitting efficiency.
A flow chart may also help identify circumstances where legal
ambiguity exists and where agency guidance or solicitor opinions would
be useful in reducing uncertainty. For example, in the mineral
development context, an individual seeking to mine cobalt from the
tailings of an abandoned copper mine located on federal public lands
would need to know whether his or her proposal is subject to the
General Mining Law of 1872 or the Mineral Leasing Act. (Presumably the
General Mining Law would apply, though this may not be the case if the
tailings occur on acquired lands.) If the mining proposal is covered by
the General Mining Law, is it necessary to submit a plan of operations
for exploratory activity due to the cumulative effects of prior
use?132
Legal guidance would reduce delay caused by research and analysis.
Uniform guidance and a clear permitting path also would promote
collaboration and communication across multiple jurisdictions. These
procedural efficiencies may also decrease litigation aversion and the
fear of making an incorrect decision in a complex regulatory arena.
A mine permitting flow chart could also be used to develop
location-specific environmental checklists. A checklist could be
created proactively for specific regions. Alternatively, a checklist
could be developed at the initiation of the mine permitting process on
a case-by-case basis. Either option would create transparency and
predictability, likely translating into faster and more durable
permitting decisions. Mine permitting checklists could identify each
potentially relevant permit to be obtained during the mine permitting
process, the environmental standards to meet, the lead agency and
personnel to be contacted regarding that permit, and appropriate
contact information. Such a checklist would be particularly useful
where federal, tribal, and state permitting programs or requirements
overlap.133
Creating the mine permitting checklist would help regulatory
officials across agencies (state and federal) proactively develop
cooperative agreements aimed at coordinating and harmonizing requisite
environmental and engineering studies. It would also help identify
specific requirements associated with land designations.134
Further, it would help identify circumstances where a more stringent
state law may require a higher level of protection than required under
federal regulations.135 Consolidating this information at
the outset of the permitting process would reduce delays attributable
to uncertainty, duplication, and conflicting standards that exist in
the current legal and regulatory regime.
A flow chart and environmental checklist would also ensure that
mine permit applications are properly prepared and appropriately
thorough. According to the U.S. Department of Commerce, incomplete
permit applications are one source of delay in the permitting process.
Further:
[M]ining permit applications often lack sufficient quality or
key information needed for regulators to make a decision on an
application. Insufficient information in the mining application
can significantly delay the permitting process as it may
require multiple application iterations until the application
is of sufficient quality to allow the permitting agencies to
make a decision.136
This observation is not surprising given the ambiguity involved in
federal regulations,137 as well as the vast variety in
mining operations governed by these regulations. Notably, the Federal
Permitting Improvement Steering Council identified flow charts and
checklists as best practices that promote efficiency and help ensure
that applicants provide necessary information in a timely
manner.138
Checklists can serve additional purposes. As discussed in more
detail below, a checklist could be refined during the scoping process
once environmental review of a permit application begins. This early
scoping analysis would ensure the thoroughness of the checklist and
avoid surprises later in the permitting process. Checklists and flow
charts can also be used to facilitate pre-submittal meetings with
operators and other stakeholders, and to clarify expectations, thereby
improving the quality of mine permitting applications.139
Once permitting review begins, the same checklist could be used to
create agreed-upon deadlines for decisionmaking, and those deadlines
could be posted on a permitting dashboard. Similar practices,
particularly the use of the permitting dashboard, have been effectively
implemented for infrastructure projects covered by the FAST
Act.140 As one commentator observed, these types of
streamlining practices are most likely to benefit ``novel or unusually
complex projects, or familiar projects in novel or unusually complex
contexts . . . because those projects tend to require agencies to
confront unfamiliar facts, make new choices, resolve untested legal
issues, and otherwise take risks.''141 Although the comment
was made with reference to infrastructure permitting, it seems equally
applicable to mine permitting.
In summary, flow charts and environmental checklists are two tools
that can immediately improve efficiency in the permitting process.
These tools support agency capacity by developing institutional
knowledge and reducing legal uncertainty. They can also help avoid
delays caused by incomplete or vague permit applications. These tools
do not require regulatory reform, and can be implemented immediately.
2. Create a Geographically Organized, Searchable Database of Previously
Drafted NEPA Documents
The RAPID website 142 has another helpful feature that
could be included in the mine permitting hub: it provides a link to
previously drafted NEPA documents.143 This feature
facilitates tiering,144 and minimizes the risk of
duplicative environmental analyses. NEPA regulations encourage using
program, policy, or plan EISs, as well as tiering statements of broad
scope to those of narrower scope, to eliminate repetitive discussions
of the same issue.145 NEPA documents can also incorporate
information by reference.146
While mining interests and agency staff presumably have ready
access to prior permitting documents for the sites in question,
obtaining access to documents or studies at far-flung locations that
addressed similar issues could expedite environmental analyses. The
NEPA database provided on the RAPID website may help overcome this
challenge. The website allows a user to search for a document by
analysis type, lead agency, and 17 state jurisdictions. The same
information should be provided on the mine permitting hub.
This database would be more useful if it also provided a map with
links to the available documents. An applicant or an agency official
could then use a geographic search for relevant environmental
documents. Improving access to prior and related environmental
documents would help agency officials and permittees identify and avoid
repetitive analyses and discussions of the same issues.
Creating a mine permitting hub that includes analytical flow
charts, environmental checklists, and a NEPA database would help reduce
delay caused by the complexity of the legal system governing hard-rock
mining. Additionally, these actions would expand agency capacity by
developing expertise and creating a system of institutional knowledge
to offset the loss of senior staff members who may not be available to
provide guidance or mentoring to new staff members. Finally, the hub
would help stakeholders better understand the mine permitting process,
engage more effectively, and appreciate how their input will be
addressed through the permitting process. Although these actions are
simple, they cannot be accomplished without adequate funding. Agency
budgets must be adjusted with enough resources to achieve these
objectives.
C. Recommendation 3: Use the NEPA Process as a Tool to Avoid Delay
Caused by Uncoordinated Interagency Permitting Requirements
The NEPA process can be used to avoid delay by coordinating
permitting and planning requirements. As one senior agency official in
the transportation sector observed, ``The NEPA process itself is
inherently efficient because it provides the platform for agencies to
coordinate permitting and planning activities at all levels of the
government, thereby avoiding duplicate or sequential reviews and
providing the opportunity for potential issues to be identified and
resolved early in the process.147 In a system of overlapping
(and at times conflicting) jurisdictional authority, gaps or
duplication of effort are likely to occur without strong coordination
between authorities.148
Done properly, the NEPA process functions as an umbrella statute,
facilitating compliance with a host of other laws such as the CWA, the
NFMA, or the National Historic Preservation Act. Indeed, there is some
evidence that permitting decisions undergoing a NEPA review are often
completed faster than those that are exempted from NEPA.149
This likely reflects improved communication and coordination that
results through interagency coordination as part of the NEPA process.
Delays are likely to increase where interagency coordination is
lacking.150 The National Research Council found:
Timing of environmental review and permitting is affected by
agencies' ability to coordinate with one another, as well as by
the availability of sufficient agency staff and technical
resources. Where coordination among state and federal
regulatory agencies is high, environmental review and
permitting appears to be faster . . . where separate agencies
engage in serial permitting, rather than coordinating their
review efforts, the process--including data gathering--can take
longer.151
Early consultation is essential to ensure
coordination.152 Early consultation should include all
stakeholders, including the relevant federal, state, and county
agencies, tribes, citizen groups, and the applicant.153
NEPA's analytical process can provide a structure for ensuring that a
proposed plan of operation ``complies with all pertinent Federal and
state laws.''154 NEPA's scoping process could be used to
identify all relevant state, federal, and local permits that would be
necessary, as well as the individual officer responsible for approving
or denying a permit.
Because the statutory and regulatory regime governing hard-rock
mining is so complex, simply identifying the applicable legal standards
and the responsible official would bring clarity for all regulatory
authorities, the public, and the permittee. The scoping process could
also define the sequence of permitting, and appropriate timelines for
permitting decisions within that sequence. This approach, which has
been successfully used for transportation projects, would significantly
reduce delays caused by ambiguity, confusion, and reluctance to
act.155
Proactively requiring all stakeholders to engage in NEPA's scoping
process can expedite permitting by identifying issues of contention
early and clarifying information that must be gathered. ``Agreement
might not be reached among all of the stakeholders. However, the issues
would be better understood by the public and defined to the benefit of
the public, the agencies, and the applicant if early consultation
occurred under the NEPA and permitting processes.''156
Additionally, without providing opportunity to raise concerns during
the scoping process, stakeholders may raise concerns late in the
process or through litigation. Some of those concerns may require
collecting additional baseline data that may have been easily collected
at the beginning of the permitting process.157 Thus, a
thorough and inclusive scoping process avoids disruptions late in the
permitting process.
Including critical stakeholders at the beginning of the NEPA
process also provides an opportunity to initiate consultation
requirements early.158 This approach would provide three
benefits. First, engaging stakeholders in consultation early maximizes
the opportunity to identify problems that can be avoided or mitigated
at the design phase of the project. Second, identifying problems at the
design phase of a project minimizes the cost of impact reduction and
avoids delays later in the analysis or at the implementation
phase.159 Third, early collaboration ensures shared mapping
and database development, which facilitates decisionmaking.
In summary, the NEPA process can promote, rather than hinder,
efficiency. At the site level, the NEPA process can be used to
coordinate permitting requirements and improve communication between
permitting officials at the federal, state, tribal, and local levels.
The NEPA process can also be used to initiate consultation requirements
early enough in the process to be meaningful and effective, which can
avoid delays in the long run. These procedures can improve timeliness,
predictability, and transparency in the permitting process. Achieving
these outcomes, however, depends upon sufficient agency capacity and
expertise to utilize these tools effectively.
V. Conclusion
Transitioning to a renewable energy economy demands an increase in
mineral production. But not every permit should be approved as it was
submitted. The permit process necessarily involves multiple authorities
enforcing different environmental, health, and safety standards. Along
the way, opportunities to eliminate, reduce, or mitigate risk may be
identified. These opportunities can only be identified through rigorous
application of the relevant standards. The increased demand for
minerals should not overshadow the productive purposes served by
permitting.
At the same time, there are opportunities to improve permitting
efficiency without compromising rigorous health and safety standards.
This requires identifying and addressing unproductive causes of delay
within the permit process.
Analytical rigor does not appear to cause delay in the permitting
process. Empirical evidence reveals that the majority of permitting
decisions are made within a reasonable time frame for the complexity of
the project. Some decisions encounter excessive delays, but this occurs
even where analytical rigor is not required. The disparity in
decisionmaking times suggests that factors other than regulatory
requirements contribute significantly to project delays. Causes of
delay include inadequate agency budgets, a lack of qualified staff,
staff turnover, delays receiving information from permit applicants,
and compliance with other laws.
Based upon this information, three simple actions can be taken to
expedite mine permit processing times without sacrificing analytical
rigor. First, avoid delay caused by insufficient agency capacity. This
can be achieved by increasing agency staff. stabilizing budgets,
rebuilding expertise, and encouraging confident decisionmaking even
where it results in litigation.
Second, reduce delay by creating tools that make the legal
structure, permitting requirements, and available information more
transparent and publicly available. This can be achieved by creating a
mine permitting hub with flow charts clarifying the permitting process
and identifying permit authorities. Environmental checklists would help
permit applicants submit high-quality applications that do not require
supplementation. Additionally, a geographically organized database of
previous environmental studies would encourage tiering and avoid
unnecessarily repetitive studies.
Third, use the NEPA process as a tool to avoid delay caused by
uncoordinated interagency permitting requirements.
These tools can promote efficiency without eliminating analytical
rigor and without waiting for statutory or regulatory reforms.
Implementing these recommendations could help the Biden administration
dispel the myth that permit reform requires loosening environmental
standards or analytical rigor in order to respond to the challenges of
climate change.
______
Mr. Huffman. And then, finally, I would enter into the
record a September Executive Order by President Biden, which
broadens the National Climate Task Force to specifically
require all major agency heads to coordinate and to accelerate
clean energy projects, something we have never seen before--
again, a very recent Executive Order that should make a
tremendous difference in this space.
The Chairman. Without objection.
[The information follows:]
Executive Order on the Implementation of the Energy and Infrastructure
Provisions of the Inflation Reduction Act of 2022 -- The White House
whitehouse.gov -- September 12, 2022
By the authority vested in me as President by the Constitution and the
laws of the United States of America, and in order to effectively
implement the historic energy and infrastructure provisions in Public
Law 117-169, commonly referred to as the Inflation Reduction Act of
2022 (the ``Act''), and to accelerate United States global leadership
in clean energy innovation, manufacturing, and deployment in a way that
cuts consumer energy costs, creates well-paying union jobs and
sustainable and equitable economic opportunity, advances environmental
justice, and addresses the climate crisis, it is hereby ordered as
follows:
Section 1. Background. The Act is the single largest and most ambitious
investment in the ability of the United States to advance clean energy,
cut consumer energy costs, confront the climate crisis, promote
environmental justice, and strengthen energy security, among other
vital provisions that will lower costs for families, reduce the
deficit, and grow and strengthen the economy. The Act will:
(a) build on the once-in-a-generation investment in the infrastructure
and competitiveness of the United States set forth in the
Infrastructure Investment and Jobs Act (Public Law 117-58) by
accelerating the deployment of clean energy technologies, making home
energy efficiency and clean energy installations more affordable, and
incentivizing the purchase of electric vehicles;
(b) boost energy security and lower energy costs for families,
businesses, and government;
(c) revitalize American manufacturing by investing in domestic clean
energy supply chains and creating well-paying union jobs, including in
traditional energy communities;
(d) improve public health and advance environmental justice and
economic opportunity for frontline communities who disproportionately
bear the brunt of cumulative exposure to industrial and energy
pollution;
(e) promote climate justice by reducing harmful greenhouse gas
emissions in line with the goal of realizing net-zero emissions by no
later than 2050;
(f) harness nature-based solutions--including climate-smart agriculture
and forestry--that deliver economic benefits for rural communities,
Tribes, farmers, ranchers, and forest landowners;
(g) expand research and accelerate innovation in the development of
clean energy, climate, and related technologies; and
(h) increase the resilience of our communities in the face of a
changing climate.
Achieving these goals will require effective implementation of the Act
by my Administration, as well as by State, local, Tribal, and
territorial governments.
Sec. 2. Implementation Priorities. In implementing the Act, all
agencies (as described in section 3502(1) of title 44, United States
Code, except for the agencies described in section 3502(5) of title 44)
shall, as appropriate and to the extent consistent with law,
prioritize:
(a) investing public dollars effectively and efficiently, working to
avoid waste, and achieving measurable, demonstrable outcomes for the
American people;
(b) driving progress to achieve the climate goals of the United States
to reduce greenhouse gas emissions 50-52 percent below 2005 levels in
2030, achieve a carbon pollution-free electricity sector by 2035, and
achieve net-zero emissions by no later than 2050;
(c) advancing environmental and climate justice through an all-of-
government approach, including through the Justice40 Initiative set
forth in Executive Order 14008 of January 27, 2021 (Tackling the
Climate Crisis at Home and Abroad), to protect and improve the health
and well-being of fence-line and frontline communities in the United
States;
(d) promoting construction of clean energy generation, storage, and
transmission, and enabling technologies through efficient, effective
mechanisms that incorporate community engagement;
(e) increasing the competitiveness of the United States economy and
investment in critical supply chains, including through the Act's
incentives and measures to strengthen domestic manufacturing and supply
chains;
(f) increasing high-quality job opportunities for American workers and
improving equitable access to these jobs, including in traditional
energy communities, through the timely implementation of the Act's
requirements for prevailing wages and registered apprenticeships and by
focusing on high labor standards and the free and fair chance to join a
union;
(g) reducing energy costs for working families, businesses, and
governments at all levels while increasing energy security for the
benefit of United States economic competitiveness and national
security;
(h) accelerating innovation by directing the scientific and technical
expertise of America's researchers, businesses, and workers toward
achieving breakthroughs in clean energy and climate technologies; and
(i) effectively coordinating with State, local, Tribal, and territorial
governments, as well as with private-sector stakeholders and
nongovernmental organizations, in implementing the critical investments
outlined in this section to build sustainable, resilient communities.
Sec. 3. White House Office on Clean Energy Innovation and
Implementation. There is hereby established the White House Office on
Clean Energy Innovation and Implementation within the Executive Office
of the President, which shall coordinate the policymaking process with
respect to implementing the energy and infrastructure provisions of the
Act and other essential initiatives.
The White House Office on Clean Energy Innovation and Implementation
shall have a staff headed by the Senior Advisor for Clean Energy
Innovation and Implementation; shall have such staff and other
assistance as may be necessary to carry out the provisions of this
order, subject to the availability of appropriations; and may work with
established or ad hoc committees and interagency groups.
Sec. 4. Interagency Coordination. (a) To further the robust
implementation of the energy and infrastructure provisions of the Act,
Executive Order 14008 is amended as follows:
(i) The introductory text following the heading for section 203 is
revised to read as follows: ``There is hereby established a National
Climate Task Force (Task Force). The Task Force shall be chaired by the
Senior Advisor for Clean Energy Innovation and Implementation. The
National Climate Advisor shall serve as Vice Chair.''.
(ii) Section 203(a) is revised to read as follows:
``(a) Membership. The Task Force shall consist of the following
additional members:
(i) the Secretary of the Treasury;
(ii) the Secretary of Defense;
(iii) the Attorney General;
(iv) the Secretary of the Interior;
(v) the Secretary of Agriculture;
(vi) the Secretary of Commerce;
(vii) the Secretary of Labor;
(viii) the Secretary of Health and Human Services;
(ix) the Secretary of Housing and Urban Development;
(x) the Secretary of Transportation;
(xi) the Secretary of Energy;
(xii) the Secretary of Education;
(xiii) the Secretary of Homeland Security;
(xiv) the Administrator of the Environmental Protection Agency;
(xv) the Director of the Office of Management and Budget;
(xvi) the Director of the Office of Science and Technology Policy;
(xvii) the Administrator of the Small Business Administration;
(xviii) the Chair of the Council on Environmental Quality;
(xix) the Assistant to the President for National Security Affairs;
(xx) the Assistant to the President for Domestic Policy;
(xxi) the Assistant to the President for Homeland Security and
Counterterrorism;
(xxii) the Assistant to the President for Economic Policy;
(xxiii) the Administrator of the National Aeronautics and Space
Administration;
(xxiv) the Chief Executive Officer of the Corporation for National and
Community Service;
(xxv) the Administrator of General Services;
(xxvi) the White House Infrastructure Coordinator; and
(xxvii) the heads of such other departments, agencies, and offices as
the Chair or Vice Chair may from time to time invite to participate.''.
(iii) To expand the mission of the National Climate Task Force to
include coordinating effective implementation of the Act, as outlined
in section 2 of this order, the second sentence of section 203(b) is
revised to read as follows: ``This Task Force shall facilitate planning
and implementation of key Federal actions to reduce climate pollution;
increase resilience to the impacts of climate change; protect public
health; conserve our lands, waters, oceans, and biodiversity; deliver
environmental justice; spur well-paying union jobs and economic growth;
coordinate effective implementation of Public Law 117-169, commonly
referred to as the Inflation Reduction Act of 2022, in coordination
with the Infrastructure Implementation Task Force established in
Executive Order 14052 of November 15, 2021 (Implementation of the
Infrastructure Investment and Jobs Act), as appropriate; and accelerate
clean energy innovation and deployment.''.
(iv) The introductory text following the heading for section 218 is
revised to read as follows: ``There is hereby established an
Interagency Working Group on Coal and Power Plant Communities and
Economic Revitalization (Interagency Working Group). The National
Climate Advisor, the Assistant to the President for Economic Policy,
and the Senior Advisor for Clean Energy Innovation and Implementation
shall serve as Co-Chairs of the Interagency Working Group.''.
(b) Section 1-102(b) of Executive Order 12898 of February 1 , 1994
(Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations), as amended by section 220(a)
of Executive Order 14008, is further amended by revising subsection
(xvii) and (xviii) and adding subsection (xix) to read as follows:
``(xvii) the Assistant to the President for Domestic Policy; (xviii)
the Assistant to the President for Economic Policy; and (xix) the
Senior Advisor for Clean Energy Innovation and Implementation.''.
(c) To further support implementation of the energy and infrastructure
provisions of the Act, section 3(d) of Executive Order 14052 of
November 15, 2021 (Implementation of the Infrastructure Investment and
Jobs Act), is amended by striking ``and'' at the end of subsection
(xi), striking subsection (xii), and adding in lieu thereof the
following: ``(xii) the Senior Advisor for Clean Energy Innovation and
Implementation; and (xiii) the heads of such other executive
departments, agencies, and offices as the Co-Chairs may from time to
time invite to participate.''.
Sec. 5. General Provisions. (a) Nothing in this order shall be
construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or
(ii) the functions of the Director of the Office of Management and
Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
JOSEPH R. BIDEN JR.
THE WHITE HOUSE
______
Mr. Huffman. Thank you.
The Chairman. The gentleman's time has expired.
And while we are entering into the record, Mr. Huffman, so
you won't have to use your imagination any more, I am going to
enter into the record the invitation on Valentine's Day to the
Honorable Brenda Mallory, Chair of the CEQ----
Mr. Huffman. How about the legislative text, as required?
The Chairman [continuing]. To testify before our
Committee----
Mr. Huffman. We don't send Valentines. We send legislative
text, Mr. Chairman.
The Chairman. And we submitted that on time, as well.
We will now go to the author of the BUILDER Act for 5
minutes. I recognize Mr. Graves from Louisiana.
Mr. Graves. Thank you.
Mr. Huffman, I have to tell you, I am somewhat
disappointed. I know that you normally hang on every word that
I say and write, and this bill was actually introduced on March
21, 2021, so I am not sure why you haven't had time to read it
yet. I thought that it would be on your nightstand. But the
bill has been around for nearly 2 years.
And we did introduce it as a discussion draft, which was
intentional, because we wanted to have practitioners, we wanted
to have experts, we wanted to have people that were on the
receiving end of NEPA to come share input, as well, Mr.
Huffman, as other Members of the Congress, to share input. That
way, we could shape the bill to reflect that input.
But it was interesting hearing your quote about
justification, and what the real holdup is for projects, and
things along those lines. I want to quote again White House
National Economic Advisor Brian Deese when he said, ``I think,
certainly, it is going to require as a country that we do
things differently, do business differently. It is one of the
reasons why the President has been so supportive of''--wait for
it--``permitting reform.''
Mr. Huffman. You want to know what that means?
Mr. Graves. I will again go back to my conversations. I do
appreciate your willingness to interpret it for me, but I am
going to go back to the meeting where, from the horse's mouth,
I had a meeting with Mr. Deese and Secretary Kerry, where they
explicitly discussed litigation reform, they explicitly
discussed NEPA reform. We talked about Senator Manchin's bill,
as well as deficiencies in that legislation. So, I think that
we can sit here and try to reinterpret and try to point or
deflect, but the reality is that they have discussed this head-
on as being a key issue.
Mr. Beard brought up issues about environmental racism in
his community of Port Arthur, Texas. Mr. Chairman, we have
projects that I have talked about in this Committee that have
been delayed and dragged through the mud as a result of NEPA
reviews and other bureaucratic challenges, and that has
resulted my hometown--my hometown, with a population of
approximately 53 percent African American, where I go home
every week, where I live--to experience flooding that could
have been prevented by carrying out projects to prevent floods.
Just absolutely remarkable, the projects that have been stymied
or delayed as a result of NEPA taking way too much time.
In regard to the environment, what this legislation does,
rather than--as Mr. Grijalva, the Ranking Member, put up in his
poster--giving the agencies $1 billion, what this legislation
does is it actually tries to refine, to focus, to concentrate
the resources, the people, and the attention on the
environment, on actually focusing on the environment, not all
of these other ancillary things, not all of this desk-jockeying
that has gone on.
There was a president years ago that issued guidance on
NEPA. And what the president said in his NEPA guidance is he
said that NEPA documents needed to be 150 pages, needed to be
150 pages, which is largely consistent with what we have done
in this bill. And even in the cases of complex environmental
impact statements--I remind you, you have categorical
exclusions, you have environmental assessments, and you have
EISs, environmental impact statements, the third of which being
the most complicated. Even those should take 1 year, 1 year.
You know who that president was? That would have been Jimmy
Carter.
So, this legislation does not--and I want to be crystal
clear, Mr. Beard and others--this legislation does not take
away the right for judicial action. It doesn't. It absolutely
does not. And if the true objective of somebody who has
concerns about a proposed project is actually getting
resolution, then I would argue that this bill will actually
help, because what it does is it forces earlier interaction. It
forces people who have concerns to bring those concerns to the
table earlier in the robust public participation process that
this legislation preserves.
So, Mr. Chairman, I am going to say it again. Yes, I want
this bill, and it is going to advance important projects for
resiliency in my hometown. It is going to allow for projects
related to energy development, including renewable energy
projects, to move forward in a more streamlined manner with
focus on the environment, not all of these ancillary things.
But it is consistent with what this White House has requested,
and it actually provides even more time and pages than
President Jimmy Carter did.
So, yes Mr. Chairman, I yield back, but I also think it is
very important that we stay focused on facts.
The Chairman. The gentleman's time has expired. The Chair
recognizes the gentlelady from New Mexico, Ms. Leger Fernandez,
for 5 minutes.
Ms. Leger Fernandez. Thank you so much, Chair Westerman.
Thank you, Ranking Member Grijalva. And, of course, as always,
thank you to our witnesses for bringing your perspectives to
the hearing today.
I go home and I hear a lot from my constituents who are
concerned about a range of Federal projects that go through,
and they want to make sure that there is a good NEPA process,
that it considers the consequences, because in the end, that is
what NEPA is supposed to do, right? What are the consequences
from the actions, the Federal actions that are being proposed,
so we do not create a mess, right? It is kind of simple. And
they understand it, and they want to know that that is done so
that they feel good and feel confident about what has happened
before.
We also know that it needs to be efficient, it needs to be
timely. We agree on those things, which is why we sent more
resources to agencies to help with that. We are going to be
having a hearing tomorrow in Indian Affairs about the
importance of moving through the permitting quickly, having the
resources that our agencies need.
But I need to say that, in New Mexico, the NEPA process has
been very useful in those rare cases that we have discussed
today. It is not all the cases, it is only about one in, what
was it, that actually focus on the full NEPA process. One was
the Fence Lake Coal Mine, and that NEPA process was
appropriately reviewed. And because of it, a coal mine that
would have destroyed the Zuni Salt Lake didn't happen. And,
therefore, the environmental and the cultural damage that would
have come from that particular mine were averted. So, we like
that a lot.
We have another proposed project in the Pecos, up in the
wilderness, close to the wilderness, and it is on a place where
there weren't the proper safeguards before. So, there was major
contamination that the State and the Federal Government ended
up holding the bag on, and had to clean up, right? So, my
constituents there want to make sure that, as a new mining
project is considered by, I will point out, a foreign company--
too often these are--these mining companies are actually
subsidiaries of foreign companies.
Last Congress, we heard about the mine in Arizona, the
Resolution Copper mine that many of my colleagues across the
aisle were really championing. Well, that has ties to the
Chinese Communist Party, and yet they were championing that. We
don't want to let foreign companies end up sort of exploiting
our resources in a way that causes long-term damage. And that
is, I think, the concern that my community has raised with me.
The Pecos River having a 10-year limit is a bit concerning,
right, because these last a lot longer than 10 years. And it
took us longer than 10 years to clean up what happened in the
Pecos before from that mining project.
Mr. Beard, what do you think is the impact of limiting
analysis to just 10 years?
Mr. Beard. Thank you, Congresswoman. My thoughts on that is
this, that by restricting them to simply 10 years, you don't
take into consideration the damage that has already been done
in that area before that project came along. If you can't look
forward to see what is going to happen, and you don't consider
the cumulative impacts that were there when you came to that
site, then you have no idea what is going to happen in the
future. Some of that is carryover.
I will say it like this for my particular case, with the
high rates of cancer and all of that. We have people right now
that are dying, right as I am sitting here that are dying, some
who have cancer and don't know it, some who have respiratory
illnesses and don't know it. But they think it is normal, but
it has become so normalized that they don't see it.
So, by extending it out that far, they are going to have
effects way before you see it. And the best way I can say this
to you--and for those of you who have not been to that part of
Texas, that part of the world--come to Port Arthur. Come and
see what we are doing. Come and breathe the air. I have had
people come on a tour that I give. I call it the Toxic Tour.
And in a matter of hours, they feel like they are coming down
with something because of what they are breathing in the air.
And contrary to what has been said earlier, this whole
permitting process is about permitting even more of this to
come. I spoke of the LNG facilities. There is one that is
proposing to come there now, in addition to the one that is
currently in construction, and the one that is already doing
business.
And then everything is constantly expanding, and everyone
talks about, well, it is just going to add a little bit more.
But when is a little bit too much, when you are an overburdened
community who has, in our case for 12 decades, had to undergo
and deal with environmental pollution and contamination from
the petrochem industry?
Ms. Leger Fernandez. Thank you very much, Mr. Beard.
My time is up, and I yield back, Chairman.
The Chairman. The gentlelady's time has expired. The Chair
now recognizes the gentleman from Arizona for 5 minutes, Mr.
Gosar.
Dr. Gosar. Yes, Mr. Veerkamp, I would first like to quote
the first line from a Bloomberg article dated January 5, 2021:
``California's 2020 wildfire season thwarted the state's fight
against climate change, spewing enough carbon dioxide into the
air to equal the emissions of millions of passenger vehicles
driving over the course of a year.'' A hundred and 12 million
metric tons of carbon dioxide were released in California in
2020, equal to the greenhouse gas emissions of 24.2 million
passenger cars in a single year.
Can you speak to the contribution of NEPA to this
catastrophe? Then I have some follow-up questions.
Mr. Veerkamp. OK. Just to make sure I understand, speak to
the time that NEPA has----
Dr. Gosar. The contribution of NEPA to this problem.
Mr. Veerkamp. Well, in my estimation as well as experience,
it is from all of the lack of ability to do things in a timely
manner that has made the forest accumulate all of this debris.
And within minutes to hours to, as I stated, up to 100 days of
continual fire burning up all that fuel provides all of this
environmental contamination. And that is just to the
atmosphere, let alone all the other consequences of a
catastrophic wildfire.
Dr. Gosar. That is what I would like to concentrate on.
I mean, in Arizona we have had a few nasty fires. And the
consequences are so that they burn so hot that there is
contamination of the soil. You actually see it sterilized,
right? What are the consequences that are long acting along
those lines?
Mr. Veerkamp. In 1995, we were notorious as well in El
Dorado County for the King Fire, and the Rubicon drainage under
Hell Hole Reservoir. And there was obviously yellow-legged
frogs, red-legged frogs, amphibians, and so forth. To this day,
they have still not found any eggs from any of those that have
survived the nuclear devastation of those intense burns. And
that is all a watershed, as well, that supplies drinking water
to Placer and El Dorado County.
So, it just obliterates the soil and its ability to regrow
things, as well as our amphibians, reptiles, and so forth.
Dr. Gosar. And usually it is decades, these consequences
are, not half a century, right?
Mr. Veerkamp. Yes.
Dr. Gosar. Mr. Pugh, it takes the Federal Highway
Administration 7.37 years and 742 pages, on average, to
complete an environmental impact statement. How can the Federal
Government prevent disasters like the recent train derailment
in East Palestine, in Ohio, if it takes this long to approve
projects that bring positive change?
Mr. Pugh. Great hypothetical question. Not entirely sure
where to start with an answer on that. The train derailment, I
am not overly familiar with the actual instances that caused
that. If it were due to some project that was supposed to
improve those tracks, then I imagine anything that would
shorten the permitting and review process to allow those
improvements to move forward would certainly help. But I am not
overly familiar with the actual instances behind that.
Dr. Gosar. Well, just the near backdrop of how long it
takes, definitely a problem in trying to get access to proper
conditions, right?
Mr. Pugh. Obviously. And with escalating costs that we are
seeing right now, dollars that we have appropriated for
infrastructure projects today, certainly 7.3 years from now
those dollars are not going to go as far, and we are not going
to be able to do as many projects.
Dr. Gosar. Got you.
Mr. Carr, the Department of Energy estimates that
electricity transmission systems must be increased by 60
percent by the year 2030. Can this be achieved under the
current NEPA requirements?
Mr. Carr. I want to make sure I understood the question. I
believe your question was the DOE projection is transmission
growth will have to be significant to accommodate----
Dr. Gosar. Actually increase by 60 percent.
Mr. Carr. Sixty percent.
Dr. Gosar. Yes.
Mr. Carr. Thank you. So, I have concerns as it relates to
accommodating that kind of transmission growth.
When we think about growing electric vehicles, the demand
that will increase and the timing to get these projects done
where there is a Federal action, I would be concerned in that
kind of growth scenario.
Dr. Gosar. So, just go through the Interior, which is the
biggest problem. Bureau of Reclamation takes 5.32 years, on
average; National Park Service, 6.64 years; U.S. Fish and
Wildlife Service, 4.75 years; Bureau of Land Management, 4.36
years; U.S. Forest Service 3.31 years. So, I think we have
problems.
I yield back.
The Chairman. The gentleman yields back. The Chair now
recognizes Ms. Kamlager-Dove for 5 minutes.
Ms. Kamlager-Dove. Thank you, Mr. Chair, and thank you,
Ranking Member.
In California's 37th Congressional District, which I
represent, we are witnessing a public health crisis. According
to the American Lung Association's recent report entitled,
``State of the Air,'' the Los Angeles-Long Beach region ranked
highest for ozone pollution, 5th for annual particle pollution,
and 8th for daily fine particle pollution.
This means that every single day my constituents are
breathing in air that is toxic. It has significant rates of
pollution known to cause adverse health effects, asthma,
cardiovascular disease, lung cancer, and reproductive harm. I
can't tell you how many toxic tours I have been on, and how
many town halls I have gone to, where I have seen little girls
under the age of 10 with metal stents in their chest because
they have lived next to a Superfund site. Yet, today, I feel
like we are meeting to consider legislation that would fast-
track the process for polluting and extractive multi-billion
dollar industries, and treat them as if they are the victims.
So, currently, when the government wants to greenlight a
project, it is NEPA that guarantees that the public is
informed, and that they have a say in what goes into their
communities. And, currently, the NEPA process directs lead
agencies to prepare an environmental assessment or an
environmental impact statement.
Section B of this legislation adds a section that would
allow for sponsor preparation, which, in layman's terms, to me
means self supervision, on top of barring legal challenges to
categorical exclusions, limiting judicial review, prohibiting
injunctive relief, just in case you didn't have enough chits.
So, for me, it is almost like an ironclad death knell for
anyone who cares about the environment.
Mr. Beard, from your experience working in the oil and gas
industry, do you believe that the industry can, has, and will
effectively self-supervise and act in the best interest of
public health if this bill becomes law?
Mr. Beard. Ms. Kamlager-Dove, I would like to put it like
this. You can't leave the fox in charge of the henhouse and
expect that you are going to have eggs and chickens.
They can't self-police. They have proven it too many times.
They don't even self-report as efficiently as they should. We
have been able to, through my organization and monitoring and
having eyes out there, have seen these things and reported
them, only to be told that, well, nothing was wrong. But we
can't trust the self-police. It just simply won't work because
their interest is not in protecting the environment, it is in
protecting stock and shareholders and protecting profits. And
if it is done at the forsaking of the community, then so be it.
We will pay the fine, pay the fee, and go on about our
business. And I have seen it too many times.
Let me illustrate a case. I think Mr. Veerkamp, or one of
the gentlemen here with me, talked about a fire that burned. We
had one, too, in Port Arthur, a wood pellet silo that was used
to export wood pellets to Europe, and calling that renewable
energy. But yet, that silo spontaneously caught fire and burned
in my community for 102 days, and impacted all of those people.
Yet, our state regulatory agency, which takes promulgation and
guidance from the Federal, only fined them $12,000. Yet, our
legal team did the estimation it should have been well in
excess of $1 million.
So, we can't expect them to self-police. We have to have
rules and guidances in place to protect and have the
contingencies available so that communities of color or any
community is not hurt or harmed. The job should be to do no
harm. But when you put these things in those areas--and they
only come to areas like you mentioned--then you are going to
have what you get. And that is simply not acceptable.
Ms. Kamlager-Dove. Thank you, Mr. Beard. I was thinking the
exact same thing. It is like having a fox in the hen house. And
after the slaughter, the little fox comes out and says it
wasn't a slaughter, it was a negotiation. Makes no sense to me.
Thank you, Mr. Chair, and I yield back my time.
The Chairman. The gentlelady yields back. The Chair
recognizes the gentleman from California, Mr. LaMalfa, for 5
minutes.
Mr. LaMalfa. Thank you, Mr. Chairman, and thanks for
bringing up the Sites Reservoir issue that is going on in my
district, one I used to share with Mr. Garamendi, until his
district changed, and that he supported as well. It has been an
extremely important project for California. It would create 1.5
million new acre-feet of water storage.
The interesting thing about that, it had been a larger
project. It was up to 1.9 million, but the people planning it
have to dodge bullets coming from government on what it takes
to get the permits done. For example, they didn't like that
there might be three sources of water to pump into it from the
Sacramento River during high flows at 6,000 CFS. It was seen as
too much. So, one of those had to be downsized. Then there are
two sources that would total 4,000 CFS because they were
worried about 6,000 being too much. So, with that they had to
downsize the reservoir a little bit in order to do that.
And also, interestingly, the only public benefits of a
storage project like that is described as water for fish. It
wouldn't be stored water for people or making hydroelectric
power. So, that is the fun background on that. So, I hope we
can continue to move forward on that faster than the glacial
pace, as California is desperately in need of water storage.
I want to shift to Mr. Veerkamp. And, indeed, my part of
Northern California has suffered from massive amounts of
wildfire over many years, even more recently being more acutely
big numbers, the Dixie Fire being right at a million acres, the
Camp Fire wiping out Paradise, the North Complex, also known as
the Bear Fire, wiping out a couple of small--I have had several
communities disappear due to this. Greenville is part of the
Dixie Fire, 75 percent of that town is gone. Nearby is a town
called Canyon Dam, completely gone. Paradise, as you remember,
90 percent gone. Small towns out of Orville, Fetter Falls, and
Berry Creek, almost completely gone.
So, indeed, the permitting process to do the type of thing
with good people, like the fire safe councils, sometimes in
concert with private timber, as well. An example, the Bear
Fire, also known as North Complex, there was grant funding set
aside for, I think, approximately 18 months that they could not
get over the hurdle for the fire safe folks to do good work
around. Finally, it caught fire and just wiped out a lot of
people there.
There was a great story written by a cattleman named David
Daly you may have seen. It kind of made national news. You
could read up about that, Dave Daly.
So, could you touch on a little more for us, please, the
aspect of a NEPA, as well as CEQA, which is the California
version of this, more or less, sometimes being required at the
same time to do any kind of project?
Mr. Veerkamp. Yes. And, unfortunately, again, as the
consequences of our best intentions, and especially when it
comes to wildfire, as you just stated, some of those major
incidents, Lightning Complex was one of them up there also that
was for weeks on end, total devastation.
But the landscape has changed. You mentioned fire safe
councils. You mentioned, or I will mention, conservation
districts. There are tools in place now, and we just need to
remove that handcuff of the restrictions so we can get in and
do this work.
Again, there are great intentions and great pieces of NEPA
and CEQA, but the ability for lawsuits and the environmental
challenges that strangle it in a timely manner, and then Mother
Nature takes over. And we all know Mother Nature, and Mother
Nature in California right now is pounding us. When they said
it was never going to happen again, well, guess what? The
tunnels are back in Lake Tahoe, and that is snow tunnels.
So, we need to just get, in my opinion, back to common
sense. We can be surgical, we can be strategic, we can
prioritize, and we can protect.
Mr. LaMalfa. So, shift to, we talk about Mother Nature.
There is more board feed of timber growing than we are
harvesting by a tremendous amount. It is growing every day,
whether we do something or not. Talk to us a little bit about
recovery after fire, when we are supposed to be doing salvage
and replanting of these devastated landscapes.
Mr. Veerkamp. Well, unfortunately, we have lost the
infrastructure to do a lot of that. And that is something,
also, which----
Mr. LaMalfa. Which infrastructure?
Mr. Veerkamp. For industry, logging, and sawmills, and so
forth, so we have----
Mr. LaMalfa. How long does it take a NEPA to do a post-fire
salvage? How long does that take, and how successful are you
even getting a NEPA?
Mr. Veerkamp. Well, again, salvage----
Mr. LaMalfa. After a fire.
Mr. Veerkamp. Under the categorical exemption on the Caldor
Fire for the Sierra Tahoe ski resort, we were able to
accomplish that within a 4-month period of time, because you
only have so much time before that timber lumber is non-
salvageable. Besides, we had a public ski resort that public
safety would be in jeopardy.
So, there was some ability, again, through categorical
exemptions to expedite that process, but it is getting the
backing to get that categorical exemption, and stating what we
have stated here today, of the need to be able to do that is
what it takes, rather than, again, infrastructure or a large
burn should be exempt from getting those things done, because a
lot of those also have a major infrastructure----
Mr. LaMalfa. And, typically, they run a year and a half.
This one was probably a little more politically loaded, due to
the area it is. It is around communities especially in a high-
dollar Tahoe area.
Mr. Veerkamp. That is correct.
Mr. LaMalfa. When you try to talk about it like over on--
well, when I am in Mendocino, for example, they wanted a 7,000-
acre project----
The Chairman. I hate to cut off a good discussion, but the
gentleman's time has expired.
I now recognize the----
Mr. LaMalfa. Yes, I know. I could go all day, Mr. Chairman,
but--yes, thank you. And, indeed, it can take a year and a
half, pretty easily, on a lot of these, and still get tossed by
a judge. I yield back. Thank you, sir.
The Chairman. I recognize the gentleman from California,
Mr. Levin, for 5 minutes.
Mr. Levin. Well, I thank my friend, the Chairman. And as I
spoke about at our last hearing, I hope that this Committee is
going to focus on finding areas of common ground. I really mean
that. And while I know we are not going to agree on everything,
I do know there are many things within this Committee's
jurisdiction that we can agree on.
And one such item is the importance of promoting an
efficient permitting process, and advancing the buildout of
infrastructure. Doing so is absolutely critical if we want to
proceed on large-scale energy infrastructure projects and
deliver for our communities. And as we embark on this important
work, I think we need to consider all dimensions and interests
in responsible energy development, including expanding high-
capacity transmission, reforming the interconnection process,
and ensuring Federal agencies have the resources and the
expertise they need to conduct efficient environmental reviews.
There was some research recently from Princeton. And they
said, in order to achieve the full emissions reductions
potential from the Inflation Reduction Act, the United States
has to more than double our historic rate of transmission
expansion, while also investing in new renewable energy
generation to meet the demand from increased electrification of
various sectors.
And I know we can develop permitting reform policies that
do that, that support clean energy projects, but also fully
consider the interests and the perspectives of environmental
justice communities. And I am hopeful we can get there. I look
forward to working with the Chairman, with my colleagues on
this Committee to get there.
And I think that Democrats and Republicans also share the
goal of timely reviews of projects, and there are actually
elements of the bill before us today that I think could be
beneficial in this regard, such as requiring designation of a
lead Federal agency, establishing a clearer process for
cooperations between agencies on NEPA reviews. And I think
there is a foundation there, and hopefully a continued dialogue
we can have.
But I also have concerns, and I understand this is an
opening salvo, if you will, but let me just share a few. For
example, any proposal to limit the scope of NEPA review, I
think, requires a pretty serious discussion. Proposals to
restrict the ability to assess the potential climate impacts of
projects that is problematic. Impeding opportunities for
judicial review, I think, is problematic, and hindering the
ability for community input, which I will talk about in a
second.
In addition, I think the current legislation we are looking
at doesn't address the Government Accountability Office's
findings, which they say the main reason for NEPA delays are
lack of Federal agency capacity and funding for NEPA reviews.
Again, I will say that one more time: the GAO found the
main reason for NEPA delays to be lack of Federal agency
capacity and funding for NEPA reviews.
So, as we think about this discussion, I think it is also
important we consider what we just did, what Congress just did
through the Inflation Reduction Act to increase that exact
thing, that agency capacity for NEPA reviews. We know that a
trained, equipped workforce is essential to processing NEPA
reviews in a timely fashion in cases where there are delays.
As the GAO said, increasing funding and staff for Federal
agencies' permitting offices and agency workforce training can
make permitting processes significantly more effective and
efficient. And we had $1 billion--$1 billion--to help agencies,
and it was all split up among the various agencies in the IRA
to help them conduct timely environmental review and
permitting.
So, with that as background, I will turn to Mr. Carr.
How important is a well-trained and knowledgeable Federal
workforce to an efficient NEPA process, and how can the
funding, the $1 billion included in the IRA, help those
agencies conduct more expedient project reviews?
Mr. Carr. I appreciate the question and the background
information.
Certainly, when we are talking about a NEPA review,
absolutely, knowledgeable, well-trained staff to conduct an
efficient review is absolutely important. I am not absolutely
certain on the IRA impact as it relates to that, I am not
certain.
Mr. Levin. OK.
Mr. Carr. But when we talk about our own experience at
Dairyland, again, in our case, the delays here--again, we
mentioned earlier the Cardinal Hickory Creek project actually
went through the NEPA review relatively quick. It was the
litigation piece where we are hung up and stuck.
In the terms of the Nemadji Trail Energy Center, it was the
decision to----
Mr. Levin. Mr. Carr, I am sorry, I am going to cut you
there, because I want to make sure I get to this other point.
I just want to address the myth that community input
necessarily slows down projects. I used to do this for a
living, and my own experience--it is not always the case, but
often the case that the opposite is often true, and early
engagement with impacted communities actually facilitates more
efficient completion of projects by providing a way to address
potential concerns early, heading off issues that may otherwise
lead to time-consuming lawsuits. I used to try to avoid
lawsuits whenever humanly possible.
Can--and I am actually out of time. I was going to ask if
you all agree. I hope that at least a few of you do. But I
mean, as sincere as I can be, this is a huge set of issues.
Let's work together. Let's focus on what we agree on, that part
of the Venn diagram, and let's actually get something done we
can be proud of.
With that, I will yield back.
The Chairman. I appreciate the gentleman's offer, and now
recognize the gentleman from Minnesota for 5 minutes, Mr.
Stauber.
Mr. Stauber. Thank you very much, Mr. Chair.
Mr. Levin, I appreciate your comments. You agree on almost
every part of my Permit for Mining Needs Act, and I do
appreciate your concern and your comments.
Mr. Graves, I appreciate all the work that you have done on
this. We have had some conversations with our witnesses and my
colleagues across the aisle that talk about the project sponsor
doing their own EA and EIS. Doesn't the Federal agency have to
sign off on it at the end of the process?
Mr. Graves. That is correct. And as a matter of fact, if
you go back, Mr. Stauber, and look at the placards that the
Ranking Member put up, he talked about the inability of
agencies to process all of this and having the bandwidth. So,
this actually provides a relief mechanism for them by using
additional capacity. It would be required to be reviewed,
edited, and approved in accordance with Federal standards
before it could be publicly released. And, lastly, this is
entirely compatible with other Federal practices, where similar
types of activities are done, where an applicant prepares the
data and information only to be modified, approved, or rejected
by the agency.
Mr. Stauber. Thank you for clearing that up, Mr. Graves.
Mr. Carr, thank you for joining us today. It is great to
see a Midwest cooperative joining us as a witness. Mr. Tiffany,
from the other side of the Port of Duluth, and I led a letter
to the Administration supporting finalization of the 6\1/2\
years and counting Nemadji Trail Energy Center, or NTEC.
I would like to enter that letter into the record, Mr.
Chair.
The Chairman. Without objection.
[The information follows:]
CONGRESS OF THE UNITED STATES
HOUSE OF REPRESENTATIVES
Washington, DC
February 10, 2023
Honorable Andrew Berke, Administrator
Rural Utilities Service
U.S. Department of Agriculture
1400 Independence Ave. SW
Washington, DC 20250
Dear Administrator Berke:
We write today urging you to reissue the Finding of No Significant
Impact (FONSI) for the Nemadji Trail Energy Center (NTEC) located in
Superior, Wisconsin. NTEC would provide dispatchable natural gas-
generated baseload power desperately needed throughout the vast service
territories of Dairyland Power Cooperative, Minnesota Power, and Basin
Electric Power Cooperative. The proposal is supported by local building
trade unions, including the International Union of Operating Engineers
(IUOE) who specialize in building energy generation and
distribution.\1\ Years of public comment have resulted in a strong,
defensible Environmental Assessment (EA). It's high time to provide our
communities with the reliable power they deserve by issuing a FONSI for
NTEC.
---------------------------------------------------------------------------
\1\ International Union of Operating Engineers President Michael
Callahan to U.S. Department of Agriculture Secretary Thomas J. Vilsack,
November 23, 2022.
Initial scoping of the NTEC project commenced in 2017, resulting in
the Rural Utilities Service (RUS) issuing a FONSI in June 2021. After
receiving a petition from an anti-energy activist legal organization
based in the Twin Cities the following July, RUS and project sponsors
consented to a supplemental EA. Originally scheduled to be operating in
2025, the commercial operation date has been pushed back to 2027 due to
the extended analysis. With significant, documented communication
between your agency, project sponsors, and outside stakeholders, a year
and a half has passed. Eighteen months to simply update an EA and
reissue a FONSI for a project is unacceptable, let alone five and a
---------------------------------------------------------------------------
half years of total project development.
We need reliable baseload power across the Upper Midwest. By not
issuing this FONSI, RUS is denying ratepayers access to power and the
peace of mind of knowing they can turn the heat up when temperatures
plummet well below zero. The Midcontinent Independent Systems Operator
(MISO) makes clear in its comment on the project that additional,
dispatchable baseload generation like NTEC are needed, even with
increased solar and wind energy on the grid:
``As RUS considers the need for electrical power in its
decisions, MISO fully supports not only the resource
development of new energy projects, but the orderly transition
of existing resources to ensure short- and long-term grid
reliability and prevent future resource inadequacies in the
MISO region.'' \2\
---------------------------------------------------------------------------
\2\ MISO Deputy General Counsel--Regulatory Kristina Tridico to RUS
Environmental Protection Specialist Peter Steinour, July 25, 2022.
NTEC enjoys robust community support, including from building
trades unions. The project will boost local budgets with tax revenues
for schools, police, fire, public safety, and more. Along with
providing high-wage, union protected jobs to local building trade
unions, NTEC will provide a strong influx of economic activity for a
region that desperately needs it. Meanwhile, the service territories
NTEC will supply feature a significant, industrial base that
desperately needs reliable power. Our mining, forestry, and
---------------------------------------------------------------------------
manufacturing sectors are desperate for reliable, affordable power.
MISO argues that we need reliable baseload power to supplement a
growing wind and solar fleet. The building trades support the high-
quality, family-supporting wages NTEC will provide. Instead of
listening to radical environmental groups, I urge you to listen to
MISO, the building trades, and our communities and reissue the FONSI
for NTEC.
Sincerely,
Pete Stauber, Tom Tiffany,
Member of Congress Member of Congress
Brad Finstad, Michelle Fischbach,
Member of Congress Member of Congress
Ashley Hinson, Kelly Armstrong,
Member of Congress Member of Congress
Randy Feenstra, Mariannette Miller-Meeks,
Member of Congress Member of Congress
Zach Nunn, Tom Emmer,
Member of Congress Member of Congress
Dusty Johnson, Derrick Van Orden,
Member of Congress Member of Congress
______
Mr. Stauber. Thank you.
NTEC has met or exceeded all requirements, and even agreed
to do a supplemental EIS. Yet, 6 years in, the project is still
delayed. Can you discuss briefly the importance of NTEC to
emissions reductions in our region?
Mr. Carr. Certainly. When we think about Nemadji Trail
Energy Center, it is actually a very efficient design unit. It
is a combined cycle natural gas facility. And when you think
about how the MISO grid works, in the case of MISO, the
electric demand won't increase because Nemadji Trail is built.
They are two separate things. Nemadji Trail Energy Center comes
into the mix, and it is a very efficient unit that, when it
operates, it will displace coal generation or less efficient
natural gas. So, CO2 emissions from that sector
actually go down because of the efficiency of that plan.
Mr. Stauber. Then my question would be, would you say that
the onerous NEPA process is actually slowing emissions
reductions because we are unable to get online a clean-burning,
dispatchable gas plant?
Mr. Carr. I absolutely would. We have seen coal plants in
the upper Midwest announce intentions that they need to stay on
because of the capacity shortfalls identified by the North
American Reliability Corporation and MISO.
Mr. Stauber. Thank you.
Mr. Pugh, we heard a lot from our colleagues across the
aisle at another hearing about how NEPA is not a problem, and
nothing needs to be fixed. However, just this morning they
discussed how they spent over $1 billion in the so-called
Inflation Reduction Act to make NEPA more efficient. Mr. Pugh,
if Democrats say NEPA is not really a problem, why are we
spending so much money on it at CEQ and other agencies?
Mr. Pugh. OK. What I have already heard this morning, or
this afternoon, is that a well-trained, educated, knowledgeable
staff is required to take us through the NEPA process. I agree
with that. Representing local government agencies, we expect
our Federal reviewers to know what they are doing and to be
able to handle our plans efficiently. The fact that $1 billion
is going to be spent to help improve this, that is wonderful. I
hope it works.
From the American Public Works Association perspective, we
have an accreditation process that our communities can go
through that shows that they are doing the right things at the
right time for the right reasons, and they do it efficiently.
That accreditation process requires that you go back and look
at your processes on a regular basis. It is a process of
continuous improvement. We would expect the same from our
Federal Government. Hopefully, we are continuously looking at
our processes to make sure that we are doing them and
delivering our services as effectively and efficiently as
possible.
Mr. Stauber. Thank you very much, and my time has expired.
Back to you, Mr. Chair.
The Chairman. The gentleman's time has expired. The Chair
recognizes the gentlelady from Nevada, Ms. Lee, for 5 minutes.
Mrs. Lee. Thank you, Chair Westerman, Ranking Member
Grijalva, it is an honor to be serving with all of you and my
colleagues on both sides of the aisle on this critical
Committee during the 118th.
I am so proud to be the voice of Nevada on this Committee,
a voice for public lands conservation, responsible energy
development, and continued timely action to combat the mega-
drought in the Southwest. And as you know, no state south of
Alaska has more public lands than Nevada. And our public lands
belong in public hands, and depend on a Congress that will
preserve and protect them. As the West faces the worst climate
crisis with the most severe drought in 12 centuries, I hope to
continue to fight for smart water policy and urgent solutions.
Now, to turn to our discussion on the energy front, if we
have learned one thing about permitting reform over the last
year, it is that there is bicameral, bipartisan interest in
getting it done. In fact, Secretary Jennifer Granholm
emphasized she is very excited about the potential for
streamlined permitting. And with Nevada at the epicenter of
Americans' transition to clean energy economy, I share that
excitement and am committed to working with Democrats and
Republicans to get the job done.
But unfortunately, the BUILDER Act is not it. And, in fact,
the former General Counsel for the Council on Environmental
Quality under three Republican presidents recently wrote to
this Committee to say that, in 42 years of working with NEPA
and reviewing numerous bills that would affect the NEPA
process, this is, by far, the most damaging of those bills, and
it would obliterate the benefits of the NEPA process for both
decision makers and the American public at large, as well as
for states, tribes, and local governments.
And not only that, a senior House Republican leadership
aide described the party's approach in this bill in no
uncertain terms, stating, ``House Republicans have the
majority, we have 218 votes, and that is what we are interested
in doing.''
So, we understand that permitting reform is too important
across this country. We understand the need for it. And it is
too urgent for this Congress to spend time on partisan bills
and one-sided legislative packages that will go nowhere. So,
for the sake of the taxpayers who have sent us here, let us cut
the politicking, and let's cut the posturing, and let's get to
work on finding an approach that will allow us to get the
permitting reform done to the benefit of the American people
and a climate in crisis.
Mr. Beard, thank you and thank all of the witnesses for
being here and for your work.
And Mr. Veerkamp, your experience with wildfires in the
West completely underscores the climate crisis that we are in.
Mr. Beard, I am just going to ask your opinion. Do you
think there is any chance of the BUILDER Act being signed into
law? Yes or no.
Mr. Beard. In its present form, no.
Mrs. Lee. So, where do you believe there are genuine
opportunities for this Congress and this Administration to work
together in a bipartisan way to make sure we have a more
reliable, affordable, sustainable, made-in-the-USA energy
policy that the Inflation Reduction Act had made possible?
Mr. Beard. Well, I think, first of all, even though I am
not probably the most qualified person to say this, but we have
to begin at the beginning. And the beginning of this is that
when we say reform, that is a bit of a misnomer to me.
We need changes, but we don't need wholesale change. In
other words, we don't need to throw the baby out with the
bathwater. There has to be protections in there for those
communities that are actually real and that are workable.
Taking away the tools of litigation from communities, that may
be all they have next to their own voices, and restricting that
to any degree is simply not good. They have a First Amendment
right to be able to speak to those things that affect their
homes and their lives.
So, that is something that has to be looked at, and there
are many others. But I am hoping, as this goes forward, that
both parties try to address that, and to address those concerns
and issues so there can be progress. You are quite right. That
is why all of you were sent here. But we have to find a way to
work together. You have to, rather, not we. You have to find a
way to work together and address those issues and those
concerns, so that there can be progress and these things
happen.
You have to have, as Mr. Pugh said, the people in the right
places with the capacity to do it, and you have to build the
capacity of those agencies. And we have to also say, and I must
say, that part of the problem is that a lot of that capacity
was taken away in previous administrations. So, it has to be
built back up, and that takes time, unless you just want to
plug anyone into it. But it takes time to get them the training
and get them the tools they need; $1 billion, that is a lot of
money. May not be enough to do what you want to do. It may cost
more. What will you say then?
It is not simply just signing a check and letting it go out
the window, and let these projects happen. Due diligence needs
to be respected. Environmental justice must be respected,
because what happens if we don't do it, it is going to affect
us all. What happens in Nevada is going to affect me in Texas.
It is going to affect all of us.
Mrs. Lee. Thank you. I yield.
The Chairman. The gentlelady's time has expired, and
appreciate the gentlelady's attention to this matter, and we
look forward to seeing your amendments to make the bill better
when we go to mark up on it. I now recognize the gentleman from
Wisconsin for 5 minutes, Mr. Tiffany.
Mr. Tiffany. Yes, I appreciate the comments from the
gentlelady from Nevada. Obviously, she wasn't on the Committee
last session. And when she talks about bicameral approach, and
everybody agrees that there needs to be a bipartisan approach
to this, we tried. We tried last session to advance this stuff
on a bipartisan basis. It didn't go anywhere. And I know you
weren't here to help that along, but that is what happened.
Representative Graves, what numeric environmental standards
have changed in your bill?
Mr. Graves. None. We simply went back and tried to, Mr.
Tiffany, I think, focus the resources and concentration and
attention on the environment. So, if anything, I will say it
again: none. But it also helps to focus the attention on
environmental impacts and on true solutions, allowing projects
to move forward faster, including environmental projects.
Mr. Tiffany. So, you haven't changed any numeric
environmental standards in this bill?
Mr. Graves. We have not.
Mr. Tiffany. OK, thank you.
Mr. Graves. Other than, just want to be clear, page limits
and time constraints, which is outside the confines of your
question.
Mr. Tiffany. So, the paper mills in Wisconsin will be
disappointed about the page limits, just so you know.
[Laughter.]
Mr. Tiffany. Mr. Carr, you mentioned some external groups,
in your opening remarks, interceded in the Nemadji Trail
project. Who were those external groups that took action to
delay this project?
Mr. Carr. And to clarify the question, specific to the
Nemadji Trail Energy----
Mr. Tiffany. Specifically to that.
Mr. Carr. Yes. My understanding, Sierra Club, Minnesota
Center for Environmental Advocacy, those were the entities that
petitioned RUS to rescind the FONSI and explore the greenhouse
gas impacts of the project.
Mr. Tiffany. Yes, and it seems to my recollection--this
proposal is for Superior, Wisconsin, which is in my district.
Didn't the EPA also play a role in interceding in this process,
and could you explain that?
Mr. Carr. I can. So, once RUS agreed and rescinded the
FONSI, went into the supplemental environmental assessment
process, it went back out for public comments once we completed
that greenhouse gas evaluation. So, EPA did submit public
comments in that 30-day public comment period.
Mr. Tiffany. And did the EPA intercede as a result of the
intercession of those groups like the Sierra Club?
Mr. Carr. That is my understanding, yes.
Mr. Tiffany. That was done at their behest. I am really
glad you cited in regards to Dairyland's energy future and the
assessment by the North American Electric Reliability
Corporation highlights the critical need to maintain baseload
generation. That is what it says in your testimony.
Isn't it correct in Wisconsin this last year they took an
unusual step of saying that Wisconsin, you are headed to a
place where you may be going toward blackouts with unusual
conditions?
Mr. Carr. The Midcontinent Independent System Operator,
MISO, that operates the grid in the central part of the country
did, in fact, also submit public comments in that case. And it
was unusual that they went out in support for this project,
again, citing the concern that we can't operate the grid solely
on wind and solar power. We need some dispatchable or baseload
energy.
Mr. Tiffany. Yes, just to be clear to everyone, Mr. Carr is
being polite through this whole thing. And as a regulated
utility, that is oftentimes what happens. But the message was
sent very clearly for the first time in the state of Wisconsin
by NERC. They said, ``You are headed for blackouts if you
continue in the direction that you are with the lack of
baseload power that is being eliminated in the state of
Wisconsin.''
By the way, we have three coal-fired plants that are
supposed to be closed here in the next year or two. They have
been delayed temporarily. If those plants are closed, you can
count on us probably heading for blackouts in Wisconsin,
becoming like Western Europe and California.
I am really glad you brought up what you did, Mr. Pugh, in
regards to the expense to this whole permitting process. I have
a county in my district that they are trying to get a grant
from the infrastructure bill that was passed last session, $1.5
million to fix about 3 miles of road. I talked to a local
contractor. If they could do this without the Federal
requirements, they will do it for half, $750,000. We are not
going to get much bang for the buck out of the infrastructure
bill.
I will just close by this. Last week, I was down on the
border in Yuma, and no Judiciary Dems showed up. No Democrats
showed up at all. Lots of people showed up in Yuma, though. The
President does not show up in East Palestine, Ohio, where there
is a major environmental problem that is going on. And, today,
his Administration via the CEQ does not show up. When are
Democrats going to show up for business of the American people?
I yield back.
Mr. Graves [presiding]. The gentleman yields back. The
gentleman from Rhode Island, Mr. Magaziner, is recognized for 5
minutes.
Mr. Magaziner. Thank you. Listen, we need to rebuild
infrastructure across this country. But at the same time, the
American people are counting on us to keep them safe in the
process, to make sure that, as we build out our infrastructure,
particularly in extractive industries, that they are going to
be safe, their kids are going to be safe, their kids aren't
going to have birth defects, their kids aren't going to have
cancer. That is why NEPA exists. This process exists to make
sure that people living in or near areas where projects are
being done are kept safe. That is a very basic thing that
people ought to expect of us.
And, unfortunately, while there are things that we can
agree on on this Committee about the need to make permitting
more efficient, we should not be cutting corners in
environmental reviews and in community input in the process. If
we want to speed up the permitting process, the way to do it is
to give agencies the resources that they need to do their jobs.
That is what Democrats did in the last session by putting $1
billion for this purpose into the Inflation Reduction Act,
which every Republican Member opposed.
What I am hoping to hear is that, if our colleagues on the
other side make good on their promise to repeal the Inflation
Reduction Act, that the $1 billion to speed up permitting will
be protected, and that shouldn't be too much to ask. But what
we should not be doing is cutting corners. We should not be
cutting corners on environmental standards, on community input,
and review.
This legislation, unfortunately, impacts the rights of
Americans to protect themselves by restricting their legal
avenues to seek justice, and by allowing the industries to
perform their own environmental reviews, putting,
unfortunately, oil industry profits and other extractive
industry profits ahead of the health and safety of Americans.
Mr. Beard, can you just walk us through what would it look
like if we reduce the statute of limitations for lawsuits
challenging these permits from 6 years, which it is currently,
to 120 days, as this bill would do?
Mr. Beard. Thank you. What would happen, in my mind, is--
first of all, you have to understand that those communities
don't have a lot of power and income to be able to mount a
successful legal defense. It is hard for them to get the legal
help and assistance they need. They don't have a lot of money.
And in some cases, because of the economic disadvantages in
those communities, they don't have the educational resources to
know precisely all of what they are dealing with. Sometimes
even we don't know all of what you need to know about that. So,
by reducing that time, you don't give them sufficient time to
be able to get on top of these things and know about them, and
try to get the assistance they need.
And then there are so few organizations out there, Legal
Aid and others, that work in this space, that they are not
going to be able to, they won't have the manpower to do it,
either. A lot of them are existing on donations and monies that
they get, you know, grants, and all of that. But that is no way
to really operate. And if you go to a law firm that has it, the
cost is astronomically high.
So, they have to have the resources, and they have to have
someone look out for them, and that is the job that you guys
have, is to speak up and defend those who can't defend
themselves, to act in their behalf. But by shortening that
time, you are making it just that much harder for them to be
heard once again. And it begs the question: What is the
purpose?
Mr. Magaziner. And as I understand it, this legislation not
only shortens the time frame significantly, but also says that
individuals and organizations who did not raise a challenge
during the permitting process would then be excluded from legal
redress after the fact, regardless of how legitimate their
claims may be.
And could you walk us through again why that is
problematic?
Mr. Beard. Once again, it is a thing of timing. They have
their lives to lead and things to do, and sometimes you may not
be able to get the information on time.
There is also the aspect of not having access to that
information. A lot of these agencies say it is there, but it is
never in plain view. It is never put where they can find it.
You would have to almost, you would have to really actually
know where it is at. It is not put there and made easy and
accessible to people. It requires some expertise sometimes, and
some guidance just to know where they put it.
So, if you don't have access to the information, and you
don't know that the information therein is for you that can
tell what could happen, then how are you going to be able to
address it? And, meanwhile, the clock is ticking.
A perfect case in point, we had a similar thing happen in
my city with our--as a matter of fact, the state of Texas now,
if you file more than three of those complaints, that you could
receive a fine for it. Why should you be fined for speaking up
about something that is hurting you and your community and your
children?
That is all very draconian in my mind. It is cruel to do
that to people who have very limited resources because, once
again, they don't put these things in Beverly Hills, or River
Oaks, or Madison Avenue. They put them in communities where
there is the least resistance.
Mr. Magaziner. Thank you for your advocacy, Mr. Beard.
Mr. Graves. Thank you. Of course, I want to make note that
the gentleman wasn't in any way suggesting that anyone on our
side of the aisle would do anything to promote or allow for our
constituents that we represent to be subjected to increased
rates of cancer.
I also want to make note that under the legislation that,
while an applicant may be the one who actually prepares
documents, that actually provides additional capacity to an
agency that then would be responsible for simply reviewing the
document.
And I am going to say this again: This is entirely
compatible with other practices that both Republicans and
Democrats have endorsed in the past.
I recognize the gentleman from Oregon, Mr. Bentz, for 5
minutes.
Mr. Bentz. Thank you, Mr. Chair. I want it to be very clear
that I support your bill, and I truly hope that something like
it passes. It seems to me there is a failure of understanding
when it comes to my friends across the aisle in wanting to
recognize that there is a real problem that needs to be
addressed; and two, to kind of call that out a little more
clearly.
And let me just refer to a study that was done by the
Congressional Research Service and DOE several years ago, when
what follows are the problems that we are facing for long
compliance periods under NEPA.
The first one mentioned is litigation brought against the
environmental assessment, or the Environmental Impact Statement
associated with the project. Let me say that again. It is
litigation brought against the EA or the EIS, and the reasons
for litigation are the EIS failing to acknowledge all
reasonable alternatives and the requirement for being waived
improperly.
And then it goes on to call out about eight more problems:
the Endangered Species Act, the growing list of protected
species; coordination with State Historic Preservation; the
cooperating agencies not adhering to agreed schedules;
disagreements on EA structure and content, and so forth;
elimination of climate change impacts, which requires further
coordination with agencies.
I call this out because on Judiciary, I have suggested to
Chairman Jim Jordan that we look carefully at doing something
about tightening up, shall we say, the Federal procedures that
apply to litigation, which, as you all know, once a lawsuit is
filed, you are thrown into the space of never-ending discovery,
never-ending motion practice. So, to say that the $1 billion
thrown at these agencies is going to solve this, no, it is not.
It is not going to. They didn't say one word about the
litigation, which is the No. 1 problem called out in this
study.
And something that just astounds me, and based on the
testimony from you that I have heard, is the amazing self-
deception on the other side of the aisle regarding the damage
being done while we wait, and whether your towns are burning
down, or whether you are spending so much money you can't
believe it on using old, antiquated infrastructure. I am
reminded with my work with the Oregon Department of
Transportation for years trying to put together bridge projects
that were delayed for many reasons, but not the least of which
is exactly the type of problem that we are debating today on
NEPA.
So, with that, Mr. Carr, do you agree that litigation
prompted by the smorgasbord of litigation opportunities under
NEPA is a problem?
Mr. Carr. I absolutely do. As we think about litigation
risk, in particular for our business as a cooperative, those
costs come right back to the members we serve. They are borne
by end-use electric consumers.
The other piece here is, as we go through the process, our
system here, we actually are governed by the communities, the
members, and the people we serve. So, they were involved on the
front end. Certainly, these interveners had the opportunity.
And yes, I am greatly concerned by the litigation costs and
those aspects.
Mr. Bentz. And I am a lawyer, I know exactly how all of
this process works, and I will just assure you that we will be,
I hope, working in other committees to try to address that
exact issue, because it is not right, and it needs to be
addressed.
Mr. Vanderkamp, sorry, I think I mispronounced your name.
Mr. Veerkamp. Veerkamp.
Mr. Bentz. Mr. Veerkamp, the situation with forests,
borderline criminal that we would delay in doing something
about it. I mean it.
But there seems to be this underlying thought, on the
Forest Service side, that the only way to get into the forest
is to let a massive fire start, the only way to manage the
forest is through burning down half of California. Now, do I
have that right, or do you, have you seen something different?
Mr. Veerkamp. Well, it certainly seems that way. Again, I
don't think it is their absolute intention.
Mr. Bentz. Oh, you know what? I know it is not their
intention, at least certainly not the one they would share. But
when you can go put a fire out quickly and don't, and let it
blow up into something huge, there are suspicions.
Mr. Veerkamp. No, you are absolutely----
Mr. Bentz. I know you want to be careful here, but----
Mr. Veerkamp. Yes. Now, you are absolutely correct----
Mr. Bentz. The optics are not good for the Forest Service.
Mr. Veerkamp. Yes, and there are many, many great employees
of the Forest Service that are doing their best, but it is just
not enough. And we have gotten so far behind that the only tool
that they know is hundreds of days of burning at forest.
But then you have the rehabilitation that the money is not
there for, either. Now the money is starting to flow, and that
is how Sierra Tahoe got cleaned up under rehabilitation orders.
But absent that, it just can't get done.
Mr. Bentz. Right. Well, I appreciate all of your efforts,
and thank you, panel, for being here.
I yield back.
Mr. Graves. The gentleman yields back. The gentleman from
Arizona, Ranking Member Grijalva, is recognized for 5 minutes.
Mr. Grijalva. Thank you, Mr. Chairman. NEPA is, from most
of the testimony and the discussion--the drought in the
Southwest and other parts of the country, that is the fault of
too much regulation and NEPA. The cumulation of the warming of
our planet, NEPA. The rising sea levels, NEPA. The heating of
our water, NEPA. So, it becomes a mechanism to say we can deal
with all these other problems if we get rid of some fundamental
protections that have existed generally for the good of the
public and for the good of the American people. The right to
redress judicially is an American right, and this bill and
others is an effort to limit that right. And I think that that
is going to raise concern more than just relative to the issue
of NEPA.
But let me ask Mr. Beard. One of the points that was made
earlier is that industry for decades knew that one of the
leading drivers of climate change was, in fact, the fossil fuel
industry, yet they kept that hidden away from and spent
countless sums trying to make sure the public didn't know about
that.
This bill allows those same oil companies to prepare their
own environmental reviews. Your reaction to that, and in terms
of the overall question about communities that you represent.
Mr. Beard. Well, the problem I found with that is, when
they do file them, they file them incompletely. They don't give
proper credence to environmental justice communities, or even
acknowledge they exist.
Case in point with something that has been discussed here,
permitting for a power plant, an expansion to do a combined
cycle gas turbine. They were not aware that they were less than
a mile from one of the largest refineries in Port Arthur, which
is Total. Total happens to be in the city's corporate limits.
And if you know anything about cities, they also have an extra
territorial limit that extends 3 miles further. They were not
even aware of that when I brought it up to them. And they were
even less aware of the fact that they pay taxes to the city of
Port Arthur because they are in those corporate limits.
So, if they don't know the very basic things of their
business in that way, how are they going to know and understand
the community and what affected peoples are there, people of
color, that, by them putting these projects in place, they are
going to be affected? It just doesn't stand to reason that it
is acceptable.
Mr. Grijalva. Mr. Beard, the public health question that--
this bill also says Federal agencies are not allowed to
consider public health impacts of proposed projects if they are
expected to occur 10 years out and later.
Again, the impact and effect on your community and other
communities like yours?
Mr. Beard. Because they are putting them in communities
that have already been overburdened and impacted, they are just
simply adding more misery to what those people are suffering,
what they have to breathe. And it won't take 10 years. It will
take even less time. But if we don't do anything, it goes back
to what I said previously: people are dying every day, and you
are going to have more people die, and you are going to see
more health effects that are chronic and serious illnesses.
And, unfortunately, nobody is even trying to find out what the
source of it is.
But we believe that it is coming from the environmental
pollution that is very toxic in my community and others across
the country.
Mr. Grijalva. Thank you, sir. As we move in a transition,
it is either going to be a transition that holds harmless
people and communities as much as possible, or it is going to
be a very painful transition. And I think NEPA plays a huge
role in this transition. It assures that communities that have
been overburdened and unrepresented in this process, indeed can
have that opportunity.
The other issue for NEPA is, I think, the question of
enforcement and compliance with the law. If we are not doing
our due diligence in terms of agencies--and that is why the $1
billion is so important--you can't keep talking about how slow
they are when you are not making a commitment to invest in
those agencies that you have decimated over the last 4 or 5
years.
Mr. Beard. That is right.
Mr. Grijalva. And I would think that compliance and
enforcement, two issues that happen to EJ communities
countless--first to get compliance to the law, and then, when
it doesn't happen, to get enforcement, I think those are losses
that are implicit and explicit in this legislation, and I think
losses that the American people cannot afford.
I yield back, Mr. Chairman.
Mr. Graves. Thank you, Mr. Grijalva. Next we have the
gentlelady from Puerto Rico, Miss JGO, Gonzalez-Colon.
Mrs. Gonzalez-Colon. Thank you.
Mr. Graves. You are recognized for 5 minutes.
Mrs. Gonzalez-Colon. Thank you, Mr. Chairman, and I thank
you, all of you, for being here.
And one of the issues that--this issue is so important back
to Puerto Rico is actually because of the reconstruction of the
island after Hurricanes Irma and Maria, after earthquakes in
the south part of the island. And we are getting knowledge how
to work with Federal funding, but we are trapped into the
permit to do that reconstruction. That is one of the biggest
issues. So, I am glad that actually we are doing this kind of
hearing.
Mr. Pugh, one of the issues that I saw in your written
testimony was that you mentioned that, in your professional
experience, any time there is Federal funding we are
introducing into a project, you immediately added 25 percent
increase to the project budget cost due to the old burdens
associated with the permitting framework. And I understand why,
right?
And my question will be, how the current NEPA increases the
cost of any Federal infrastructure project, and how this
permitting reform may help not just American taxpayers, but
local communities to achieve the rebuilding of those projects
if we do the reform permit.
Mr. Pugh. Yes, thank you for the opportunity to speak about
that.
Again, I did mention in my comments that, right off the
bat, any time we had Federal dollars introduced into one of our
projects, we would add at least 25 percent to that project,
simply because we know that with local funds we can build
projects faster and cheaper than we can using state or federal
funds, simply because at the local level we don't have all the
strings attached and all the documentation requirements that we
have when you introduce state or federal funds. We still have
to go through the environmental review process. We still go
through Department of Water Quality. We still go through
historic preservation, if there are things along those lines
within our projects. But the documentation burden is the
general issue there.
Plus, most of your local government agencies don't fully
understand the NEPA process, and we wind up having to go
outside and retain an outside engineering firm to help foster
us through the process of going through the funding
requirements.
Mrs. Gonzalez-Colon. You are talking about my own
experience back home. I mean, we do have that specific problem.
Even the local government is requiring many things that are
included already in NEPA.
So, to that end, you also mention in your testimony that
the average time to conduct a NEPA review for Federal highway
projects was 7.3 years. And I understand that a review
conducted by the Trump administration found that, on average,
an Environmental Impact Statement took 4.5 years to complete,
and that one-fourth of all Environmental Impact Statements took
over 6 years to complete.
So, to that end, the BUILDER Act will establish a time
limit of 2 years for completion of Environmental Impact
Statements and 1 year for Environmental Assessments. And based
on your professional experience, will this be a reasonable
amount of time to conduct comprehensive environmental reviews?
Mr. Pugh. I would certainly think so. Again, we are not
suggesting that we reduce any level of public input. We are not
suggesting that we reduce or change any of the environmental
policies that are currently out there, or the reviews that are
required to make this happen.
From a local government standpoint, again, we want to make
sure that the reviews are coordinated, that they are handled
efficiently, that when we submit a project for review, that we
get our comments back in a timely manner, so that we can
address all the comments we receive, and not do it in a
piecemeal kind of manner. And right now, I don't think there is
a standard time frame at the Federal level for the review
process. A lot of times it just gets turned in, it gets put in
line, and we don't know when we are going to get comments back.
It is compounded when you get comments back, and then you
have to address those again, and it gets thrown back into the
same review process.
Mrs. Gonzalez-Colon. I totally agree with you. And how do
you respond to those who argue that enacting permitting reform
to expedite a project approval will weaken or undermine any of
our environmental standards? Are those mutually exclusive?
Mr. Pugh. I don't think they are. We would like to advocate
on behalf of an efficient and thorough review, period. But we
would like to have a time frame put on that so that we know
what to expect.
Again, that gets back to the dollar amounts added to our
project costs. When we expect the project to take us 2 years to
get through the start, design, through permitting, and ready to
go to construction, and it actually takes us 5, 6, 7 years--we
still have that outside engineer, that outside firm on
retainer, and we are still paying them. So, that cost even
escalates further.
Mrs. Gonzalez-Colon. Thank you. I agree, and I yield back.
Mr. Pugh. Thank you.
Mr. Graves. The gentlelady yields back. The gentleman from
Georgia, Mr. Collins, is recognized for 5 minutes.
Mr. Collins. Thank you, Mr. Chairman. Earlier this
morning--I will make the same comment. I am a freshman here,
haven't been here but about 8 weeks, but I am going to tell you
something. I have spent 30-plus years as small businessman, and
I have been dealing with the overly burdensome regulations that
the Federal Government has placed on our industry. And I can
talk specifically about what I felt and what that has done to
our company.
Mr. Carr, earlier today I was in a meeting with some
electric co-ops that are in my district, and they were telling
me about an energy project that has almost doubled in cost.
Now, that cost is going to be passed along to the consumers,
people that use electricity. Have you had similar experiences
with projects that are costing more due to Federal regulations?
Mr. Carr. I appreciate your question. Yes, absolutely. As
an electric cooperative, the costs we have incurred and the end
costs--in the case of the Cardinal Hickory Creek, we are
talking 10 to 15 percent, in that range. We have submitted
documents. In the Nemadji Trail, we haven't defined the actual
costs, but we are very concerned about it. It is back to we
serve the members who govern us. Our end-use consumers own our
cooperative, and we are very concerned about the cost impacts
that this regulation is having on our consumer members.
Mr. Collins. Thank you. As a businessman, when I see a
problem I want to know what the solution is and how to fix it.
And we know that the Federal Government is over-regulating.
We know they love to make regulations, and they like to make
things more complicated than what they need to be.
Mr. Pugh, what can Congress do to simplify the NEPA process
and make it easier for individuals to just navigate? If you can
just shoot bullet points, I would love to just make some notes
and write it down, please.
Mr. Pugh. Right. I believe in our written testimony that we
submitted, we had those bullet points highlighted, and that is
basically establishing a lead Federal agency to develop a joint
review schedule. That gets back to the schedule being known up
front. That also eliminates a lot of the concern with
conflicting comments we may receive from Federal agencies to
where we have to play referee on who wins.
We ask that we establish time and page limits for
completion of those documents. We ask that we extend the
completion period with approval of the applicant, when
necessary, to allow for further consultation with local
agencies.
We ask that we bring the statute of limitations for NEPA
cases in line with other environmental statutes.
We ask that you reduce duplicative reporting by allowing
adherence to state or even local standards, because a lot of
time on these projects we have to meet local, state, and
federal requirements.
And, finally, examine a reasonable number of feasible
alternatives for projects, because the definition of what is
reasonable changes, depending on what individual and what
agency you speak with.
Mr. Collins. Thank you.
Thank you, Mr. Veerkamp, I didn't want to leave out
something. My grandpa had a saying, too. He always said the
road to the poorhouse was paved with good intentions.
Mr. Chairman, that is all I have. I yield back.
The Chairman [presiding]. The gentleman yields back. The
Chair now recognizes the gentlelady from Wyoming, Ms. Hageman,
for 5 minutes.
Ms. Hageman. Wonderful, thank you. I want to begin by
touching on an important point that Mr. Pugh made in his
testimony that, ``Like any policy that has been in place for
five decades, NEPA should be updated to address current
societal needs.''
One of the new circumstances that I think you are probably
referring to that would warrant congressional review of NEPA is
something that Mr. Carr and Veerkamp touched on, and that is
the frivolous environmental lawsuits.
Just last year in Wyoming, a Federal judge required
additional lengthy environmental reviews for new or pending
coal, oil, and natural gas leases in the Powder River Basin.
This basin produces more than 40 percent of the United States'
coal, and coal is still the second largest source of United
States' electricity, and will be for a long, long time.
The fact is that these lawsuits are intended to force
energy poverty on Wyoming and the Americans that we serve. To
exemplify the abuse in the current law, in 2022, the Bureau of
Land Management approved 3,535 applications in Wyoming and New
Mexico. But it wasn't very long before the lawsuits started
pouring in.
Mr. Beard, you have indicated that one of the reasons why
we need to have a 6-year statute of limitations is because so
many of the people who would be affected by these projects
don't have the knowledge or the money or the wherewithal to
battle them. As a water and natural resource attorney in
Wyoming, I can assure you that is the furthest thing from the
truth. The reality is that the environmental groups are some of
the most wealthy, non-profit organizations that are out there.
And I can also assure you that, in the state of Wyoming, we
want these projects to go forward. We are proud of the fact
that we serve and make the lives better of the American people.
We are proud of the fact that we are responsible for providing
affordable energy and affordable food. We are proud of the fact
that, with our national forests and our private forests, we are
able to provide affordable housing for the citizens of this
country. We are proud of what we do as one of the very largest
energy producers in the United States of America.
What we don't like, and what is troublesome, is that NEPA,
which is simply a process statute that was created so that we
can make sure that, as these projects go forward, the
environmental impact is assessed, is that these turn into 5-
and 10- and 15- and 20-year lawsuits that prevent us from being
able to use our natural resources, the natural resources that
belong to the citizens of this country.
The fact is, I am tired of sitting back and watching our
forests burn to the ground. I am tired of sitting back and
watching our watersheds be destroyed because of the
catastrophic forest fires that are impacting the interior West.
I am tired of watching as an administration like the Clinton
administration adopts things like the roadless rule to deny
access management and use to 58.5 million acres of National
Forest Service lands at the same time that we have a housing
shortage. I am tired of the fact that there are regulatory
agencies in this country that will adopt over 3,500 major
regulations a year, while Congress will only deign to pass
maybe 35 to 50 pieces of legislation.
The reality is that NEPA desperately needs to be reworked.
The Endangered Species Act desperately need to be reworked. And
they do, because we live in a different time than we did in the
1950s, 1960s, and 1970s.
We do an excellent job of protecting our environment. You
gentlemen in the resource industry, I am proud of what you do.
I am proud of your ability to provide affordable energy and do
the things that you do for the folks of this country.
So, all I want to do is make the statement after all of my
colleagues have been able to ask most of the questions that I
think are important today: I just want to let you know that I
stand with you. We stand with you. We recognize that there are
changes that need to be made because our current environmental
regulations are not protecting our environment, but they are
breaking the great people of this country.
Thank you, and I yield back.
The Chairman. The gentlelady yields back. The Chair
recognizes the gentleman from California, Mr. Duarte, for 5
minutes.
Mr. Duarte. Hello, Mr. Veerkamp. Welcome to DC. I am an El
Dorado County grape grower, among a few other things, and have
a vineyard up in the Georgetown area I bought from Doug and
Lori Veerkamp in 1999, a property that was forested at the
time, and we converted the forest lands to a vineyard property.
And since then, especially in the last 6 years, I think we have
been smoked out and had some level of smoke damage or another
on our wine grapes, as many, many growers, wine growers
throughout California, have had due to forest fires.
I just pulled it up here, 20 of the largest forest fires in
California's history have happened in the last 20 years, or at
least since 2000. We talk about socially disadvantaged
communities. El Dorado is no thriving megalopolis.
And if you look at the good work Congressman McClintock did
on making sustainable forest practices viable and putting them
into practice in the Tahoe Basin, that didn't do a lot for the
citizens of Paradise in 2018, when 85 people were killed
because an overgrown, unhealthy forest ripped through their
city.
The fine homes around Lake Tahoe are preserved and enjoy
sustainable forestry, but many, many lower-income rural
communities are not only suffering the effects of an abandoned
economy, of foresters, loggers. I have been up to Georgetown
quite often. The hotel has been bought out by a couple of pot
farmers. They look like they were doing pretty good a couple of
years ago, but I think they are on their heels now.
But the entire community has lost a lot of its character,
lost a lot of its economy, lost a lot of its vibrancy, and
probably lost a lot of its young people in the same effect.
As a fifth generation El Dorado resident, I just invite you
to give us a human side to the rural communities that you live
in, and what the just absurd resource management practices over
the last couple of decades have brought, from your viewpoint,
for rural communities.
Mr. Veerkamp. Well, obviously, El Dorado County, El Dorado,
land of gold, and it was framed from the gold rush era, and
basically land of opportunity. And through processes of all of
our faults it has become land of non-opportunity. And there are
consequences of, again, regulation and so forth, put those
handcuffs on, and then we have devastating consequences,
whether it be our flumes for our irrigation district or, again,
whether it be our education system when we have to shut our
schools down, whether it be the costs--and I didn't mention
them--to FEMA for the rehabilitation.
You are talking $1 billion that was put into this other
bill. Suppression costs alone last year approached $5 million
across the country, and then the cost to FEMA. I don't know,
they are totally astronomical. And I know we are all out money
trying to rebuild infrastructure for those catastrophic events.
And for some of the reasons, FEMA should just write the check,
absolutely. But we need to turn this around so we are not being
reactive. We need to be proactive.
In our rural environments, it has degraded the ability for
people to make a living, people to prosper. And we have to get
back to that so all of us can be successful.
Mr. Duarte. Thank you. I am on a few committees. We are
looking at the water drought in California, the man-made
drought in California. We are looking at the overgrown, and
unsafe, and unhealthy forests of California.
And it always seems to come back--a good friend of mine up
in Georgetown, up in El Dorado County actually defined it for
me. It is single species management through the Endangered
Species Act. We go to save the smelt at the cost of all else,
and we parch our Earth. And we have children in the south of
San Joaquin Valley with exceedingly high rates of respiratory
illnesses. We have valley fever, we have severe asthma. We have
epidemiological evidence that the Endangered Species Act biops,
biological opinions being employed in the Delta, are killing
children in the South Valley.
We have rural communities where we are trying to save the
spotted owl up in the Sierras and through the coastal ranges,
causing unhealthy forests and destroying habitat for all
species, including human. And no one can argue the spotted owl
are any better off under today's forest management schemes than
they were when we had healthy, sustainable logging in the
forest.
So, I thank you for coming from a rural community, because
we have social equity issues, if that is what we want to call
them, all over this country, and we can remedy them with more
sensible regulatory policy.
The Chairman. The gentleman's time has expired. I now
recognize the gentleman from Colorado, Mr. Lamborn, for 5
minutes.
Mr. Lamborn. Thank you, Mr. Chairman. And I want to ask a
question. It starts out with a Colorado-specific anecdote, or
example, but it is a broader question because I am representing
a district in Colorado.
In Colorado, Federal jurisdiction over public lands can
change drastically, even over a short distance. Within an
hour's drive of my district it is possible to travel through
the jurisdiction of several U.S. military bases, National Park
Service land, national forest land, Bureau of Land Management,
and state parks. While we are blessed to have such an abundance
of public areas, it makes infrastructure permitting difficult
to impossible.
Each of these jurisdictions is required to do a separate
NEPA analysis for a single project. I know that has been
discussed a lot here today. And it becomes especially
burdensome, where companies end up paying extra to zigzag
around public lands and go through the hassle of crossing them.
So, Mr. Carr--and excuse me if this has already been asked
and answered--but can you explain how the NEPA litigation
process shuts down access to all kinds of energy, including
renewable energy?
Mr. Carr. Yes, certainly. In the case of the Cardinal
Hickory Creek transmission line, this line is to bring wind
energy from Iowa into Wisconsin. The load center, the demand
for the energy is to the east, and the wind resource is to the
west. So, we have over 100 projects awaiting interconnection
and dependent on that line. These are renewable energy projects
that are in Iowa waiting, again, to provide energy that can
move--it would help lower CO2 emissions and increase
the amount of renewable energy coming into the mix. And the
litigation is, in fact, delaying that and adding cost.
Mr. Lamborn. Thank you.
And Mr. Pugh, I have a question for you, also. According to
the Energy Information Agency, Colorado's renewable electricity
net generation has more than tripled since 2010 and has
accounted for 35 percent of our state's total generation in
2021. Likewise, Colorado ranked seventh among the states in
total energy production, even though our per capita energy
consumption is lower than two-thirds of all other states.
Despite this abundance of energy, much of it cannot be
brought online. According to Lawrence Berkeley National
Laboratory, over 1,400 gigawatts of total generation and
storage capacity are now seeking connection to the grid, with
backlogs extending multiple years. So, Mr. Pugh, can you recap
for us, again if necessary, what role does environmental
litigation play in keeping new energy sources from accessing
the grid?
Mr. Pugh. I am not entirely sure that is a question
directly for me. Public works industry, we cover
transportation, we cover water, wastewater, emergency services,
fleets, and solid waste. The electric industry is not really a
huge part of our association.
However, our communities, some of them are electric cities.
And the city of High Point, where I worked, is an electric
city. And I know that they had to run through a lot of the same
environmental processes that we did with our transportation and
infrastructure projects.
Mr. Lamborn. Would anyone else like to take a crack at
that?
Mr. Carr. Again, in the case of renewable energy, and wind,
and solar, we are going to see a massive transformation in the
U.S. grid. It is underway. As we talk about decarbonizing the
grid and moving ahead with cleaner energy sources, that will
still require dispatchable generation. And by dispatchable I
mean energy that can be there when the intermittent wind or
solar can't.
So, again, a transmission-related buildout that is going to
be required, and permitting timelines and costs are concerning
in particular to the electric consumer. That will raise the
cost that electric consumers are paying, and it delays the
transition to that cleaner energy future.
Mr. Lamborn. All right. Thank you. And thank you all for
being here today.
Mr. Chairman, thanks for having this hearing.
The Chairman. The gentleman yields back. The Chair
recognizes the gentlelady from Colorado, Mrs. Boebert, for 5
minutes.
Mrs. Boebert. Thank you, Mr. Chairman. I appreciate you
holding this hearing today.
With the average hardrock mining project taking 7 to 10
years, as we have heard today, to go through the NEPA
permitting process, clearly we must do more to streamline the
permitting process. Canada and Australia can safely get through
their permitting processes in 2 years. No reason we can't do
the same thing right here, while still protecting the
environment in America.
We are very, very effective at this. We certainly produce
the world's cleanest energy. Nobody does it better than our
guys.
The International Energy Agency estimates that implementing
the radical Green New Deal would require the production of
lithium, cobalt, nickel, and other critical minerals to
increase by 3,000 percent by 2040. Instead of supporting
environmentally responsible and safe domestic mining, Democrats
and not-in-my-backyard extremists would rather outsource our
critical minerals to unsafe mines in the China and in the
Congo. And I am going to return to that point later in my
remarks.
Nearly 40,000 children are estimated to be mining for
cobalt in the Congo with their bare hands. Working in such an
unsafe environment in these conditions, they are no strangers
to tragedy. I am personally sick of seeing woke corporations
virtue signaling their lobbying for policies that destroy
American jobs, and then turn around and purchase minerals that
are stained with the blood of children working in unsafe
conditions in third-world countries. That is not virtuous. It
is not reasonable. It is something that we combat here on a
regular basis, pushing Green New Deal energy policies, wind and
solar.
Look, all-of-the-above energy, that is fantastic. But we
don't need the Federal Government choosing winners and losers,
making it near impossible to have good, safe mining here in
America, drilling here in America by propping up wind and solar
companies with these heavy subsidies. It is truly disgusting.
Now, Mr. Beard, the National Environmental Policy Act is
over 50 years old. Average EISs take 4 to 5 years to complete,
are over 600 pages long, and add $4.2 million to project costs.
We have heard testimony today that this is delaying major
projects in every sector, from transportation, to forestry, to
transmission. Given the overwhelming evidence and consensus
that this process is broken, can you name one legislative
reform to streamline NEPA that you or your organization has
previously supported?
Mr. Beard. In terms of legislation that we have supported
on the Federal level, no. But we have supported, or we do
support a process that allows for hearing the environmental
justice concerns and issues of communities.
Mrs. Boebert. Now, I am sorry, Mr. Beard, look, I am not
asking what you would do to an already over-complicated
process. I want to know what you would do to streamline this
process. I am asking this so we could have a streamlined
process that costs less and really moves quicker. Can you name
one streamlining provision that you have previously supported?
One streamlining provision.
Mr. Beard. In this Act?
Mrs. Boebert. No, ever. You or your organization. To make
this more cost effective, to streamline it, to make it more
effective.
Sir, I heard you say that you come from a city that was a
sacrifice city. Don't you think these children in the Congo--I
think that is a sacrifice city. These children mining with
their bare hands for cobalt in the Congo, child and slave
labor? That, to me, sounds like a sacrifice city, not some
flares that you took a picture of, and--do you support carbon
capture?
Do you support the mechanisms that we have in place to
capture what comes off of those flares? Because history has
shown me that my colleagues on the other side of the aisle and
in groups like yours, you prevent us from actually implementing
that, that captures everything that is coming out of those
flares, but then you want to bring pictures here and show us
what the flares do.
Do you support that----
Mr. Beard. Congresswoman, let me be clear, because we have
run out of time. So, I do want to answer you while we have
time.
Those pictures I brought are showing what the impact is on
communities. You talk about what is happening in those other
countries, but where is that same level of concern about the
children in Port Arthur?
Mrs. Boebert. Let's capture it.
Mr. Beard. About the children in Corpus Christi,
Mrs. Boebert. Let's work together to capture it.
Mr. Beard. About the children in St. James Parish,
Louisiana, Cancer Alley, who not only are being exposed there,
but they are being exposed----
The Chairman. The gentlelady's time has expired. I will
note that votes have been called. We are going to try to go one
more Member round of questions, and I apologize to the panel,
but we are going to have to recess and come back to wrap up the
Committee.
Mrs. Luna from Florida, you are recognized for 5 minutes.
Mrs. Luna. Thank you. It seems, and after this testimony,
it is very obvious that, although NEPA was initially intended
to strike a balance between environmental impact of all major
Federal regulations and developing domestic natural resources,
it has basically now been weaponized against, really, American
energy producers, when the real enemy of the environment is
China, as Mrs. Boebert had stated previously.
But in addition to this, we are finding many frivolous
lawsuits being launched against some of these producers via
activist groups that often have little to no meaningful
participation in the NEPA process, having tied up many projects
in litigation, including over 2,200 onshore oil and gas leases.
So, these lawsuits are not from members of the public, like
many on the left have claimed. Instead, NEPA litigation surveys
between 2001 and 2013 found that 59 percent of all the lawsuits
came from public interest groups. So, I think we can all agree
that, when that happens, it is usually not in the best interest
of the general population.
Rather than maintaining these common-sense NEPA updates and
streamlining the Federal Government's decision-making, reducing
the cost, debt time, and also complexity of analysis that were
hindering producers, the Biden administration rolled back these
updates, reverting us back to NEPA's 1978 regulations.
So, my question is actually for you, Mr. Carr. How many
projects depend on the construction of the Cardinal Hickory
Transit transmission line that is currently tied up in
litigation?
And in addition to that, how has the delay of the Cardinal
Hickory transmission line impacted communities that rely on
this project's completion?
Mr. Carr. Yes, thank you for your question. In the case of
Cardinal Hickory Creek, at last count, as far as we are aware,
there are over 100 renewable energy projects that are relying
on that interconnection into the grid. So, very significant, in
terms of renewable wind energy coming into the grid.
In terms of the community impact, in Dairyland's case the
community is the consumers of electricity we serve. So, within
that service territory those consumers aren't receiving the
benefit of that lower-emitting wind energy, that lower
CO2 wind energy. The partners in the transmission
line with us that serve other utilities in the state, that wind
energy, that renewable energy that we are trying to deliver is
being delayed, and the costs of doing so are going up.
Mrs. Luna. I think it is clear that modernizing NEPA's
provisions would have significant impacts on the efficiency of
project reviews, decreasing project costs, and reducing the
likelihood of frivolous lawsuits. Unfortunately, it appears
that this Administration would rather increase red tape than
streamline the process and bring relief to the American people.
Thank you for everyone who joined.
Chairman, I yield my time.
The Chairman. The gentlelady yields back. The Chair
declares the Committee in recess, subject to the call of the
Chair, which is anticipated to be approximately 5:15 p.m.
[Recess.]
The Chairman. The Committee will come to order. The Chair
now recognizes the gentlelady from California, Ms. Porter, for
5 minutes.
Ms. Porter. I had promised--I, as a parent, had promised
them that if they scored a passing grade, they could get a new
video game. Now, the child would be understandably upset. They
might feel bad. They may feel guilty. But they would probably
just deal with it, and deal with the bad grade. But what if the
child's teacher said, ``You can change your grade to whatever
you want it to be''?
What grade do you think that child would give themselves
with a video game on the line? Mr. Carr, start with you.
Mr. Carr. Boy, I don't know in that case. To speculate on
what the child might say, I really don't know. I think at some
level you are trying to suggest that he would grade himself
very high.
Ms. Porter. Yes, I think that is usually right. Having been
a professor, that has usually been my experience.
Any of the rest of you want to guess what would happen if
you could give yourself a grade? What grade would you give
yourself on your performance today?
I think most people would give themselves an A. That was
always my experience, as a professor, when I let my students
grade themselves.
So, in changing your grade by yourself, not from your
teacher, you are basically not getting an actual reflection, an
adequate and accurate reflection, of what really happened. So,
I want to be clear about why, given this example, project
applicants should not be allowed to essentially grade
themselves, to basically get around and manipulate our Federal
laws that have protected our environmental and human health for
decades. This bill does that. It allows natural gas, oil,
mineral extraction, coal, even wind companies, for that matter,
to have unilateral authority to prepare their own environmental
review on their own without any legitimate oversight.
Now, Mr. Carr, in your testimony you listed promoting--and
this is a quote--promoting greater applicant involvement in the
NEPA process as a key area for NEPA modernization. On page 13
of the BUILDER Act, there is a section titled ``Sponsor
Preparation.'' Are you aware of that section?
Mr. Carr. I don't have it immediately in front of me, no.
Ms. Porter. So, you are unable to tell us whether you agree
with that section, Sponsor Preparation.
Mr. Carr. In terms of sponsor preparation, my general
understanding of the intent is that it would be engagement
between the applicant and the interested parties, stakeholders,
and it is a broad outreach process. That is my understanding.
Ms. Porter. So, the provision, as I understand it, says
that the lead agency will independently evaluate the
environmental document of the proposed project. And you cite
this need in your testimony.
Do you really think a Federal agency will conduct
sufficient oversight over a project that decides to do its own
environmental review?
Mr. Carr. Was that question to me? I am sorry.
Ms. Porter. Yes.
Mr. Carr. Could you ask the question one more time?
Ms. Porter. Do you really think a Federal agency will do
sufficient oversight over a project that decides to undergo its
own environmental review process?
Mr. Carr. I believe that is the intent of what we are
trying to accomplish here.
Ms. Porter. I believe that is the intent. But do you think
it will happen?
Mr. Carr. I do.
Ms. Porter. You do. Let me give you an example of why I am
concerned.
In 2015, the PennEast Pipeline Company filed an application
with FERC, the Federal Energy Regulatory Commission, for the
PennEast Pipeline Project, which is a natural gas project.
During the environmental review process, PennEast failed to
disclose to FERC multiple times--and they provided missing
data, including a list of alternative routes to avoid wells
that supply local drinking water and the destruction of state
protected farmland, a wetlands and watershed survey, and a
sufficient arsenic study. Despite these missing materials that
are required under NEPA, FERC approved PennEast's Environmental
Impact Statement.
So, let me ask you again, Mr. Carr, are you really
confident that Federal lead agencies will conduct sufficient
oversight of future environmental reviews?
Mr. Carr. So, certainly in the case of Dairyland Power,
again, one of the interesting aspects is we are governed, as
well, by the communities, the members, and the consumers we
serve. They are the governance body. They are the communities,
they are the stakeholders. They are on both sides of the aisle.
They are involved in the process all the way along.
I am confident that, as we stand today, as we are seeing
two projects that would actually reduce the environmental
impact, the greenhouse gas impacts, that the process is
blocking it. I think the time for reform is now.
Ms. Porter. So, you are not worried, and I appreciate your
diligence. I just want to say I am concerned that this process,
this reform, would basically let the foxes run amok in an
already porous, shall we say, chicken coop.
Thank you. I yield back.
The Chairman. The gentlelady yields back, and I don't mind
giving her extra time for making the trek back over to fill in
for Mr. Grijalva.
I now recognize myself for 5 minutes, and I want to thank
the witnesses sincerely again for your testimony. The
gentlelady from California had me thinking of, actually, when I
was in elementary and middle school and even in high school,
the teacher did let us grade her work sometimes. But it was
usually multiple choice, so you would grade it, and then the
teacher would take it up, and you never knew if the teacher was
going to go back and look at how you graded your paper.
So, it actually taught you to, I think, a bit of integrity
and honesty to not cheat on your work, because somebody was
looking at it. And I think that applies to the permitting
authorities, that somebody is looking at it. It is not like you
fill out an application and grant yourself a permit.
Being a professional engineer and working in the consulting
business, I actually filled out a lot of paperwork for clients
on permits, and all we did is provide the information. And my
understanding is today, even on oil and gas projects where BLM
is granting the permit, a lot of third parties are hired to
actually do the grunt work, if you will, on filling out all of
the paperwork. And then that still gets submitted to the agency
for approval of a permit.
So, when we talk about assisting, we are not talking about
approving the permit. Mr. Carr, can you speak to that?
Mr. Carr. Yes. I think in the end, again, my understanding
of the Act is that it would require the Federal agency to
actually conduct the final determination and evaluation. They
would have to ensure that the process met the standards, the
work was thorough, and they have the ultimate say.
The Chairman. I believe the goal of that is to reduce the
workload that we keep hearing about. The Federal agencies don't
have enough funding, they can't find people.
And I found it interesting that it takes up to 2 years to
hire somebody for one of these positions because of the Office
of Personnel policy. So, a lot of this is self inflicted by the
Federal Government. So, giving people a pathway to use
competent outside third parties to make the process go smoother
actually seems like a common-sense scenario to me.
Mr. Beard, again, I appreciate your testimony. I am just
trying to understand. You actually worked in a refinery in Port
Arthur. Is my understanding, correct?
Mr. Beard. That is partially correct. I worked in
ExxonMobil in Beaumont's refinery, not Port Arthur.
The Chairman. OK. So, you talked a lot about, or you showed
pictures of flaring. You talked about FERC. And I just want to
try to get some clarity here.
We are talking about NEPA reform, which is generally more
upstream from the refinery. Energy and Commerce has
jurisdiction over the Clean Air Act. They have jurisdiction
over FERC. And we are talking about how do you actually get
things permitted that deal with Federal lands, or the Federal
Government, and those regulations. Now, if we can't get the
permitting done through NEPA, and you can't get the pipelines
built to those refineries, then you don't get oil or gas in
those refineries, and you definitely don't see the flare.
So, is your position that we shouldn't have refineries, or
we should just make the permitting process around the
refineries better?
And how does that relate to NEPA, which is upstream of the
refinery?
Mr. Beard. Well, I am not saying that at all, Mr. Chairman.
Maybe I was a little bit imprecise. Those pictures were there
to show you what is the aftermath of permitting, not what
violations of the Clean Air Act looks like. It is showing you
that, when these plants are permitted and these emissions
happen, this is the current status.
But now, when permitting allows more of those to come in,
they are adding more pollution and contaminants into the
atmosphere. My organization is currently dealing with some of
those very same issues, where they are saying only it is just a
little bit, it is not that much. But when it is something like
benzene, which there is no known safe level, I am just saying--
--
The Chairman. But benzene and clean air and clean water,
that is out of the jurisdiction of our Committee.
Mr. Beard. Right, but what I am saying is--but it is
permitted.
The Chairman. Right.
Mr. Beard. It is permitted. And those projects----
The Chairman. But I just wanted to be clear that we are not
talking about that kind of permitting.
Mr. Beard. Yes, I am clear. I am clear. I understand where
you are going with that.
The Chairman. So, reclaiming my time here----
Mr. Beard. Go ahead.
The Chairman. Also, if we don't have the fossil fuels, if
we don't have the oil and gas, then we need energy from
somewhere, and we are talking about permitting that allows
mining development. And these NEPA reforms would apply to being
able to mine the minerals and elements, to build the electrical
grid, to build electric vehicles. Are you opposed to that?
Mr. Beard. I am not opposed to it. But what I am opposed to
is a process that does not allow for the full understanding of
the environmental and community and the environmental justice
impacts. When you have a process that is so shortcut that it
can't do that, then I have a problem with it.
The Chairman. And, again, I think that is the purpose of
this hearing today, is to get input so that when we mark up the
bill, we can take more of those things into account.
Mr. Beard. Well, I think I was pretty clear on telling you
that, if it is looking at shortening the amount of time for
litigation, that is a deal-breaker.
The Chairman. But this language, again, has nothing to do
with the kind of permitting that you referenced in your
testimony. And I am going to talk briefly----
Mr. Beard. And that is understood. But in reference to
what----
The Chairman. Reclaiming my time----
Mr. Beard [continuing]. You are talking about here----
The Chairman. Reclaiming my time----
Mr. Beard. Go ahead.
The Chairman. When we talk about forestry, being a
forester, I have seen some really nice forests. The very nicest
forests have never been subject to a NEPA review. The best
management out there is done by professionals who know what
they are doing, and they never had a NEPA review on it.
So, I am way over time, and you have already asked
questions----
Mr. Beard. Well, I only have one thing to say on that, are
those NEPA reviews the only type of reviews we are considering
here, or are we considering a full gamut of them dealing with
petrochem and others?
The Chairman. No, we are just talking about NEPA, NEPA
reviews. And I am going to give you a second.
I want to allow every witness except for our vacant chair
over there, I thought maybe they would watch and come over, and
CEQ would have a little input, but apparently they don't want
to. But if there is one thing you didn't get to tell the
Committee today, I want to give you a chance to maybe bring
that out. And maybe you are tired and ready to go home. But,
Mr. Carr, we will start with you.
Mr. Carr. Again, from my perspective, from Dairyland Power
Cooperative's perspective, what we have seen is projects that
are enabling a CO2 reduction going forward, bringing
more clean energy into the mix, and that those projects are
being delayed by an outdated process. They are adding costs
that are borne by electric cooperative consumer members, and we
think it is time for a change.
Thank you very much for the opportunity to participate.
The Chairman. Mr. Veerkamp?
Mr. Veerkamp. Yes, I would just echo that. And just on the
basic premise that the consequences of the best intentions of
the world have to be amended from time to time, and you have to
see what you have caused, and then be willing to step up and do
it.
And I should have answered Ms. Porter's question--it
depends on how you raise your kid. Integrity, honesty. So, that
would have been my answer to her question about the kid issue.
The Chairman. Mr. Beard?
Mr. Beard. If the process that you are talking about in
this bill reduces the amount of time that people have to voice
objections, and puts unnecessary burden on them to do them in a
very subjective way, if it also impacts them in terms of public
participation and also legal redress, where it takes from them
a very basic principle of American life and government and
American law even, if it puts them in a position where their
environmental justice and health concerns are not paramount
because they are already in over-burdened, over-oppressed
communities, then this is not reform. It is just what I said
earlier, it is a death knell to those communities. You are
heaping more suffering on those who are already over-burdened.
And as such, I would not want to see this bill go forward.
But if it can be refined to take those into not just
consideration, but let them be a deciding factor because their
lives should not have to be sacrificed, whether it is in a mine
or whether it is in an oil field, or whether it is just
basically on the street. The pollution and contamination is
real, and it affects those communities, and they deserve to be
heard, and they deserve to be considered because their life is
just as valuable as the lives of any of the others that we are
mentioning here. Thank you.
The Chairman. Thank you, Mr. Beard.
Mr. Pugh?
Mr. Pugh. Thank you very much. I heard a couple of folks
talk about what their parents taught them and instilled in
them. My father was very big on community service, and being
active in his community, and making it a better place to live,
raise your kids. His motto was always leave things better than
you found them. And I have tried to do that in every aspect of
my public life and my career.
APWA embodies that in everything we do. We try to improve
the quality of life in our communities, whether it is through
our transportation, our water, our wastewater, stormwater, our
emergency management, our fleets, our buildings and grounds,
parks, everything we do impacts the quality of life of our
community.
A lot of our projects are intended to improve the quality
of life inside our communities. Shortening the time frame on
NEPA review, consolidating those comments, making sure that we
know what to expect when we get into the process, that would
greatly benefit each and every community that we serve.
And we appreciate the opportunity to make comments on this.
Thank you.
The Chairman. Thank you, Mr. Pugh.
And, again, thank you all for your valuable testimony. It
has been informative, and it will help us as we move into a
markup on this legislation and then, hopefully, consideration
of the Full House of Representatives.
The members of this Committee may have some additional
questions for you, and we will ask you to respond to those in
writing.
Under Committee Rule 3, members of the Committee must
submit questions to the Committee Clerk by 5 p.m. on Friday,
March 3, 2023. The hearing record will be held open for 10
business days for these responses.
If there are no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 5:36 p.m., the Committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submission for the Record by Rep. Westerman
National Association of Manufacturers
February 22, 2023
Hon. Bruce Westerman Hon. Raul Grijalva
Chairman Ranking Member
Committee on Natural
Resources Committee on Natural Resources
Washington, DC 20515 Washington, DC 20515
Hon. Sam Graves Hon. Rick Larsen
Chairman Ranking Member
Committee on Transportation
and Infrastructure Committee on Transportation and
Infrastructure
Washington, DC 20515 Washington, DC 20515
Hon. Cathy McMorris Rodgers Hon. Frank Pallone
Chair Ranking Member
Committee on Energy and
Commerce Committee on Energy and Commerce
Washington, DC 20515 Washington, DC 20515
Dear Chairman Westerman, Chairman Graves, Chair McMorris Rodgers,
Ranking Member Grijalva, Ranking Member Larsen and Ranking Member
Pallone:
America's success and leadership depend on a strong, competitive
manufacturing industry. Some of the biggest obstacles preventing
manufacturers--and therefore the entire American economy--from reaching
our full potential are the permitting delays, red tape and complicated
bureaucracy that have plagued us for decades. Today, though, as we work
to modernize our infrastructure and shore up our supply chains, the
need for reform is more urgent than ever. Manufacturers in the United
States employ 13 million people and add more than $2.8 trillion to the
U.S. economy, but the industry can do even more if the permitting
process is run more efficiently. That is why manufacturers are grateful
that you have prioritized modernizing the broken process to minimize
delays that stand in the way of manufacturing projects and job-creating
investments.
As you proceed with this critical work, we want to help identify
some of the most pressing areas that need attention.
Energy Infrastructure
Permitting hurdles are delaying projects across the energy
landscape, including oil and gas pipelines, electric transmission
lines, rail facilities for energy transport, coal, nuclear and
liquefied natural gas exports. Clean and emerging energy technologies
face similar, steep permitting challenges. For example, the siting of
and infrastructure for hydrogen power generation and transportation and
for advanced, small modular and micro-nuclear reactors have progressed
far too slowly. Manufacturers depend on access to reliable and
affordable energy to expand, which is why we support reforms that would
foster transparent, streamlined and timely federal regulatory processes
for the siting, permitting and licensing of energy delivery
infrastructure of all types.
Transportation Infrastructure
Manufacturers also rely on roads, rails, airports and ports for
everything from employees' access to facilities to getting raw
materials to shop floors and finished products to customers. Basic
infrastructure must be developed before ground can ever be broken on a
major facility. Yet obtaining permit approvals for these projects often
takes years, especially when reviews are piecemeal and duplicative. We
appreciate lawmakers' drive to have more products manufactured in
America, but too many companies are waiting on the sidelines because
transportation infrastructure construction moves too slowly--or not at
all.
Passage of the bipartisan Infrastructure Investment and Jobs Act in
2021 heralded a new era in much-needed improvements to nationwide
infrastructure systems. These upgrades, updates and new projects
represent the generational investment needed to keep manufacturers in
America competitive in a global marketplace. To ensure the broad and
beneficial impact of these investments--and achieve the congressionally
intended effects--it is critical to clear permit backlogs and ease
processing timelines. The NAM was a strong supporter of this historic
legislation and remains committed to seeing the promise shaped by this
federal focus through to successful results and economic gains
nationwide.
Resource Development
Manufacturers strongly believe that permitting, leasing,
exploration and development of the nation's resources must be done in
an environmentally sound and responsible manner. But unnecessarily
restricting access to America's abundant natural resources hinders our
ability to strengthen domestic supply chains. It also makes
manufacturers more reliant on raw material imports. The inconsistent
administration of critical mineral policies, for example, has limited
our ability to use a wide range of resources that lie on and beneath
federal lands--resources that are critical to producing everything from
cars to medical devices. Streamlining resource permitting and leasing
policies will help stabilize manufacturing supply chains, control costs
for consumers, reduce our reliance on foreign countries and create jobs
in the U.S.
Environmental Standards
Manufacturers are proud to have helped lead our country to the
cleanest air in the modern world. It is important to protect these
achievements by avoiding measures that give a competitive economic
advantage to countries with less regard for the environment.
Unfortunately, when federal agencies continually revise standards
before current standards are met and before states have implemented
prior mandates, they create unpredictability. That adds to inflationary
pressures and can lead to the U.S. losing out on new projects and
facilities to other countries, undermining the very goals of our
environmental standards.
Overly burdensome, shifting regulatory policies inherently affect
permitting, licensing and siting applications because they move the
goalposts of compliance with federal regulations. If instead we make
the process more predictable and consolidate the many complex layers of
review, the U.S. can continue to build on its strong record of
environmental stewardship by boosting domestic manufacturing, which is
environmentally cleaner than international competitors.
Congressional Intent
The success of any legislative permitting reforms depends on proper
implementation. Ensuring the administration follows congressional
intent on recent and future statutory streamlining efforts such as One
Federal Decision is key. Establishing strict permit review timelines
and eliminating duplicative efforts across various federal agencies
help in reducing unnecessary delays. Moreover, key permitting
authorities are rife with ambiguity and inconsistent terminology and
warrant congressional intervention.
***
Permitting affects every aspect of our lives--from our economic
security to our national security. If we fail to modernize existing
processes, the U.S. is at risk of falling behind international
competitors that are taking every possible step to incentivize
manufacturing development. On the other hand, if we seize this
opportunity to lead, there is no limit to what manufacturers in the
United States can accomplish--for the good of our people and for the
good of the world.
Sincerely,
Jay Timmons,
President and CEO
______
Submission for the Record by Rep. McClintock
Up in smoke: California's greenhouse gas reductions could be wiped out
by 2020 wildfires,
Environmental Pollution 310 (2022) 119888, August 5, 2022
by Michael Jerrett, Amir S. Jina, Miriam E. Marlier
https://doi.org/10.1016/j.envpol.2022.119888
1. Introduction
Recent evidence suggests that climate change contributes to
increased wildfire activity in the western United States (Abatzoglou
and Williams, 2016). California's summer wildfire burned area increased
eightfold from 1972 to 2018 (Williams et al., 2019), and statewide
climate change projections predict an amplification of wildfire risk
due to higher temperatures and drier conditions (Westerling, 2018).
Climate change exacerbates fire risks already stoked by increasing
development near the wildland-urban interface (WUI) that have made
humans the main ignition source in California (Keeley and Syphard,
2018), as well as decades of fire suppression and underinvestment in
preventive measures such as mechanical clearing or prescribed burns
(Keeley and Syphard, 2021; Kolden, 2019; Radeloff et al., 2018).
Wildfires, in turn, release GHG emissions that can contribute to
climate change.
California experienced its most disastrous wildfire year on record
in 2020. CalFire, the state agency responsible for leading California's
wildfire prevention and suppression, reports that 1.7 million hectares
burned in 2020 (CalFire, 2022). Many of the worst fire years in
California's history have occurred in the past 20 years, with eighteen
of the top 20 most destructive fires in terms of loss of life and
property since 2000 and five in 2020 alone (CalFire, 2021). The 2020
fires have been followed by another extreme fire season with 1.0
million hectares burned in 2021.
In addition to the immediate loss of life and property, hospital
admissions and premature deaths have likely happened because of the
smoke exposure (Cascio, 2018; Fann et al., 2018; Reid et al., 2016;
Wang et al., 2020), which blanketed large parts of the state with tens
of millions of people with unhealthy air quality that persisted for
months in some locations. Recent estimates put the economic costs of
direct health costs at $32 billion for 2018 (Wang et al., 2020). Future
climate projections suggest that wildfires will become an increasingly
important source of air pollution in the western U.S. (Ford et al.,
2018; Liu et al., 2016).
When forests burn and are not balanced by vegetation regrowth, they
shift from a natural sink to a source of carbon (van der Werf et al.,
2017). This can represent a positive climate feedback loop in which
increased GHG emissions contribute to climate change and further
increase wildfire risk. Although wildfires are a natural feature of
many ecosystems in California, the increase in severe and frequent
wildfire events has raised the possibility of transformed post-fire
ecosystems as new plant communities regrow following fire events that
alter carbon sequestration potential (Bowman et al., 2020). Regrowth
relies on several factors including species burned, drought, and active
replanting (Kibler, 2019). Even if long-term regrowth occurs, however,
the carbon emissions occurring in the next 15-20 years will make it
difficult to reach emission reduction targets needed to avert the 1.5
degree C increases in mean global temperature advocated by the
Intergovernmental Panel on Climate Change (IPCC) (IPCC, 2018). Recent
studies on the Australian wildfires have suggested that the magnitude
of the fires in combination with the broadleaf species being burned
likely places fires somewhere in between carbon neutrality and complete
emissions (van der Velde et al., 2021).
In this short communication, we quantify the likely carbon
emissions that occurred in 2020 from wildfire activity in California.
We then situate these emissions in the context of other leading GHG
emissions sectors in California. We conclude with policy
recommendations for reporting of routine wildfire emissions and for
increased investment in preventive measures.
1.1. Data and methods
Given substantial uncertainties among fire emissions inventories
(Liu et al., 2020), we obtained multiple sources of fire emissions data
for 2003-2020. First, we accessed satellite-based fire CO2
emissions from the Global Fire Emissions Database version 4 with small
fires (GFED4s) (1997-present; considered preliminary since 2017) and
Global Fire Assimilation System version 1.2 (GFAS) using FIRECAM (Liu
et al., 2020). These inventories represent ``bottom-up'' and ``top-
down'' approaches to fire emissions estimation, respectively, and have
shown the best correspondence with aerosol observations in North
America (Carter et al., 2020). Although GFED and GFAS do not
distinguish between wildfires and other landscape fires such as
agricultural or prescribed burns, we expect this contribution to be
minor in California. We also obtained wildfire-specific emissions
estimates from the California Air Resources Board (CARB) (2000-2020),
which combines individual fire perimeters with a wildland fire
emissions model (CARB, 2020). The average across inventories is 127 mmt
CO2e for 2020 (ranging from 101 to 171 mmt CO2e)
and 18 mmt CO2e for 2003-2019 (ranging from 15 to 22 mmt
CO2e).
We next compared wildfire emissions to sectoral GHG emissions for
2003-2020 to maintain consistency with availability for all three
wildfire emissions inventories (CARB, 2021). In 2019, the CARB reported
418 mmt CO2e emissions for all sources with the top 3 being
transportation (166 mmt CO2e), electrical power generation
(59 mmt CO2e), and industry (88 mmt CO2e). For
2020, we assume constant emissions from the year 2019, as this was the
last year where the CARB estimated sector-specific contributions to
CO2e, although this may be an underestimate due to potential
emissions reductions during the COVID-19 pandemic (Liu et al., 2021).
Finally, to assess the socioeconomics benefits of reducing these
CO2 emissions, without considering the co-benefits of air
pollution reductions, we apply the social cost of carbon (SC-
CO2). The SC-CO2 is an estimate of the marginal
damage caused by the emissions of an extra ton of CO2 today
in net present value. This value, adopted by the Biden administration
in February 2021, is $51 per ton with a 3% discount rate in 2020 USD
(Interagency Working Group, 2016). We also apply a value of the SC-
CO2 where damages are restricted only to the United States.
While this lower value of $7.1 per ton in 2020 (Governmental
Accountability Office, 2020) does not capture the global nature of
emissions, it does allow us to attribute the local component of global
damages caused by the fires.
2. Results
We first compared sectoral emissions to wildfire emissions, which
indicate an approximate release of 127 mmtCO2e in 2020,
nearly seven times the 2003-2019 mean. From 2003 to 2019, California's
GHG emissions declined by 65 mmt CO2e (-13%), largely
driven by reductions from the electric power generation sector. The
2020 fire season alone is two times higher than California's total GHG
emissions reductions and would comprise 49 percent of California's 2030
total greenhouse emissions target of 260 mmtCO2e (Fig. 1)
(CARB, 2017).
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.epsFig. 1. Annual emissions from individual sectors and wildfire
emissions. CARB, GFAS1.2, and GFED4s wildfire emissions shown as red
lines (not considering vegetation regrowth). Note: Since data is not
yet available, 2020 non-fire emissions are assumed to be equal to CARB
2019 estimates. (For interpretation of the references to colour in this
figure legend, the reader is referred to the Web version of this
article.)
Global monetized damages caused only by CO2 from
California's fire emissions in 2020 is approximately $7.09 billion in
net present value when applying SC-CO2 from the Biden
administration with a constant 3% discount rate. This value is reduced
to approximately $986.9 million in damage for the U.S. when considering
only domestic damages. If we consider what this implies for California
only, we calculate the median damages to California as a percent of
U.S. damages in 2080-2099 implied by Hsiang et al. (2017). This gives
values of 8.5%, 12.1%, 9.4% for Representative Concentration Pathways
(RCPs) 2.6, 4.5, and 8.5 respectively. Scaling the previous U.S.-only
value to the average of these percentages, this would imply that the
carbon emissions-only damages for California would be approximately
$98.7 million in net present value.
3. Conclusions
In this short communication, we analyzed the likely CO2e
emissions from wildfires in California during 2020. Averaging three
fire emissions estimates, we find that approximately 127 mmt
CO2e were emitted in 2020. We emphasize that our wildfire
emissions estimates do not consider subsequent vegetation regrowth
following fires so this is considered an upper bound for net wildfire
GHG contributions to the atmosphere. This regrowth, however, could take
decades or longer depending on the type of ecosystem that burned.
If we compare fire GHG emissions to total GHG emissions of 418 mmt
CO2e total in 2019, this amounts to a 30% increase in total
emissions by all sectors. This makes the GHG emissions from wildfires
the second most important source in the state, after transportation
(166 mmtCO2e), but above either industry or electrical power
generation (88 and 59 mmt CO2e, respectively). Viewed from
the perspective of what this means for wildfire emission reductions
from all other sectors combined, if we compare to reductions from 2003
to 2019 from 483 to 418 mmt CO2e, the likely amount of
increase from the fires is close to double all the emission reductions
achieved in the state from 2003 to 2019.
The economic damages are informative for two key reasons. First,
they represent a currently unquantified aspect of damages due to fires
that are incurred globally, in the U.S., and in California itself.
These damages should be counted in addition to fire control costs,
damages from air pollution, and direct loss of life and property.
Second, they provide a benchmark against which to compare the costs of
prevention measures, based purely on climate change mitigation, and not
including co-benefits of reduced pollution, lower property risk and
loss, and other damages associated with fire risk. The Federal
government and California recently signed a memorandum of understanding
to increase to 1 million acres per year forest treatment to prevent
wildfires in the State (State of California, 2020); in 2021, California
invested $1.5 billion in wildfire resilience programs, including
prescribed burning (California Wildfire & Forest Resilience Task Force,
2022). If future treatments are moderately effective and reduce
wildfire risk and subsequent CO2e emissions by 20%, this
would reduce 20% of the total $7.09 billion in externality costs that
we have calculated (i.e., $1.42 billion in benefits). Including the
carbon mitigation benefits further justifies the wildfire prevention
costs.
Our analysis suggests several notable bit findings. First,
wildfires in California have become a major and growing source of GHG
emissions. Over the long to very long term, regrowth could alleviate
some of the emissions, but this is unlikely to occur on the time scale
necessary to meet near and medium-term emission targets needed to avert
passing the 1.5 degree C threshold. Second, the magnitude of the
emissions makes wildfires the second most important source of emissions
in 2020 behind transportation emissions, and one that appears likely to
grow with future climate change. Average wildfire emissions from the
past 5 years (46 mmt CO2e from 2016 to 2020) ranks above
the most recent individual contributions from the Commercial &
Residential, Agriculture, Recycling & Waste, and High Global Warming
Potential sectors. The latter includes fluorine-containing gases that
destroy stratospheric ozone; sources include electricity transmission
and distribution and semiconductor manufacturing. Third, wildfire
emissions in 2020 essentially negate 18 years of reductions in GHG
emissions from other sectors by a factor of two. Fourth, the additional
global damages due only to the contribution of these emissions to
climate change can be valued at $7.09 billion.
The findings imply several research directions and policy actions.
The externalities caused by fire emissions incurs damages globally and
in California, and the economic value should be considered alongside
other direct costs of fires (Feo et al., 2020), including prevention
and suppression. Wildfire emissions are not routinely reported with
other key emission sources such as transportation, industry, and power
generation. While wildfire emissions tend to be more variable than
other sectors, it is still important to track these emissions to ensure
near and medium-term emission reduction targets are met. A likely
consequence is that wildfire emissions have not received nearly the
same level of societal investment or attention as emissions from other
sectors. Although wildfires are to some extent natural occurrences,
human activity contributes to making wildfires ``unnatural disasters''
through anthropogenic climate change and development at the WUI in fire
prone areas. Moreover, forest management policies focused on fire
suppression rather than on preventive measures such as mechanical
clearing and prescribed burning activities also likely increases the
risk of large, destructive wildfires. If fires are no longer in balance
with ecosystem regrowth, we risk different vegetation communities
regrowing with less potential for carbon sequestration. A need also
exists to develop accessible quantitative tools for policymakers and
the public to understand how wildfire risk can be reduced through
better management, how much loss of life and property can be avoided,
and how much it will cost to achieve these goals. This will allow for
more accurate assessment of investments in improved forest management
or prevention of development in fire prone areas at the wildland-urban
interface.
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Submissions for the Record by Rep. Boebert
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Submission for the Record by Rep. Grijalva
OUTDOOR ALLIANCE
March 6, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: February 28th legislative hearing on H.R. ____, ``Building United
States Infrastructure through Limited Delays and Efficient
Reviews Act of 2023''
Dear Chairman Westerman, Ranking Member Grijalva, and members of
the Committee:
On behalf of the human-powered outdoor recreation community, we
write to express our views on the discussion draft of the Building
United States Infrastructure through Limited Delays and Efficient
Reviews Act of 2023 (BUILDER Act), which was considered during February
28th's full committee legislative hearing. The discussion draft of the
BUILDER Act proposes a sweeping set of changes to the National
Environmental Policy Act (NEPA), which include limits on judicial
review of agency decisions, expedited timelines, and significant limits
on the types of information that agencies can consider during the NEPA
process. While our community shares the Committee's interest in making
NEPA more efficient and responsive to the challenges of our time, we
find that the BUILDER Act would severely weaken agencies' ability to
make reasoned, equitable, and science-based decisions through the NEPA
process, and as a result we strongly oppose the bill.
Outdoor Alliance is a coalition of ten member-based organizations
representing the human powered outdoor recreation community. The
coalition includes Access Fund, American Canoe Association, American
Whitewater, International Mountain Bicycling Association, Winter
Wildlands Alliance, The Mountaineers, the American Alpine Club, the
Mazamas, Colorado Mountain Club, and Surfrider Foundation and
represents the interests of the millions of Americans who climb,
paddle, mountain bike, backcountry ski and snowshoe, and enjoy coastal
recreation on our nation's public lands, waters, and snowscapes.
Our community has extensive experience working in the NEPA process
in the context of public lands management, from forest planning and BLM
resource management plan development, to travel management, recreation
management, and other natural resources decisions. We also at times
work as proponents of recreation infrastructure projects--like trail
networks--that require navigating the NEPA process, and we are familiar
with the frustrations that can accompany NEPA from that perspective. We
work at all levels of the NEPA process, from participating in
collaborative groups, to submitting comments and meeting with agency
decision makers, to participating on rare occasions as NEPA-related
litigants. These experiences have provided us with an informed
perspective on NEPA policies and practices.
Given this experience with the NEPA process, the outdoor recreation
community is open to considering targeted science-based based reforms
to NEPA, especially if it is shown that they are necessary to achieve
recreation access, ecological restoration, and clean energy goals.
These reforms, however, absolutely cannot come at the expense of
frontline communities' ability to protect themselves from environmental
hazards, or at the expense of agencies' ability to consider the best
available scientific information to achieve the best outcome for a
project.
Rather than taking a targeted approach to NEPA reform, the
discussion draft of the BUILDER Act instead proposes broad changes to
established policies that have served as critical tools in protecting
America's environment for more than half a century. Many of these are
similar or identical to the deeply damaging NEPA regulations adopted by
the Council on Environmental Quality under the Trump administration in
2020, which have since been rescinded. The outdoor recreation community
strongly opposed the 2020 NEPA rules when they were proposed, and
generated more than 20,000 messages to the administration and lawmakers
in defense of NEPA and its core values.
In many cases, the BUILDER Act goes even further than the 2020
regulations in weakening NEPA's integrity. The discussion draft
proposes a long list of reforms that are problematic. However, the
following proposals are particularly concerning for our community:
Narrowing the application of NEPA--The bill redefines what
constitutes a ``major federal action,'' giving agencies
discretion to determine whether an action falls under
NEPA's scope. The bill also explicitly excludes federal
financial assistance, such as federal loans and loan
guarantees, from NEPA.
Limiting the scope of reviews--The bill limits the scope
of alternatives that agencies can consider and provides
direction that alternatives can be designed to ``meet the
goals of the applicant.'' Furthermore, the bill specifies
that agencies do not have to undergo new scientific or
technical research during the NEPA process.
Severely limiting judicial review--The bill reduces the
statute of limitations from six years to just 120 days
following a decision and would also bar legal challenges to
categorical exclusions. The bill would also prohibit
injunctive relief for projects that are subject to judicial
review.
Prioritizing goals of the project sponsor over the public
interest--The bill would allow project sponsors to prepare
environmental reviews for their own projects, rather than
having agencies complete these reviews themselves. The bill
also encourages agencies to prepare alternatives that meet
the goals of the applicant.
Together, these changes, and others proposed in the BUILDER Act,
would most likely lead to a federal decision-making process that is
more contentious, less equitable, and less protective of the public's
interest than the process that currently exists.
In addition to these substantive concerns with the legislation
itself, we are also concerned that the BUILDER Act will not address the
primary challenges that we experience as participants in the NEPA
process. In our experience, the overwhelming obstacles to efficient
NEPA implementation come from agency capacity constraints and issues of
agency culture around NEPA implementation that are most appropriately
addressed at the agency level and by providing staff and resources to
management agencies. We were highly encouraged to see both the
Infrastructure Investment and Jobs Act and the Inflation Reduction Act
include significant funding to support environmental reviews, and we
are eager to see these funds put into action. We encourage Congress to
give agencies the opportunity to put these resources to work, and to
consider where additional assistance, such as improving the federal
hiring process, may be needed, before considering whether wide-reaching
policy changes may be appropriate.
***
Thank you for the opportunity to comment on the discussion draft of
the BUILDER Act. The outdoor recreation community looks forward to
working with you to support a NEPA process that promotes efficiency,
government accountability, and public input.
Best regards,
Louis Geltman,
Policy Director
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