NEPA and Hurricane Response, Recovery, and Rebuilding Efforts

NEPA and Hurricane Response, Recovery, and Rebuilding Efforts

Order Code RL33104
CRS Report for Congress
Received through the CRS Web
NEPA and Hurricane Response,
Recovery, and Rebuilding Efforts
March 24, 2006
Linda Luther
Environmental Policy Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

NEPA and Hurricane Response,
Recovery, and Rebuilding Efforts
Summary
As local, state, and federal agencies respond to Hurricanes Katrina and Rita,
agency officials must determine the extent to which certain environmental laws and
regulatory requirements will apply to their response, recovery, and rebuilding efforts.
The requirements of the National Environmental Policy Act of 1969 (NEPA, 42
U.S.C. § 4321 et seq.) has drawn particular attention in the wake of the disaster.
Signed into law by President Nixon on January 1, 1970, NEPA was the first of
several major environmental laws passed in the 1970s. It declared a national policy
to protect the environment and created a Council on Environmental Quality (CEQ)
in the Executive Office of the President. To implement the national policy, NEPA
required that a detailed statement of environmental impacts be prepared for all major
federal actions significantly affecting the environment. The “detailed statement”
would ultimately be referred to as an environmental impact statement, or EIS.
For many federal actions undertaken in response to an emergency or major
disaster, NEPA’s environmental review requirements are exempted under provisions
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford
Act); CEQ regulations also allow for “Emergency Alternative Arrangements” for the
preparation of EISs. In the wake of the Katrina and Rita, congressional interest in the
NEPA process has focused primarily on projects for which no exemptions or the
potential for Alternative Arrangements exist.
Some Members of Congress have discussed the need for legislation that would
provide waivers to or streamline methods of compliance with NEPA’s environmental
review requirements. The need for those provisions, some Members of Congress
assert, originates from two areas of concern: the role that NEPA-related litigation
may have played in delaying past flood-control projects (two projects, in particular,
have been widely reported in the press) and NEPA’s role in high energy prices caused
by delays in energy development projects such as oil exploration projects and refinery
permitting. Others argue that NEPA is being used as a scapegoat after the New
Orleans flooding. Further, they charge that delays in energy-related projects are often
unfairly attributed to NEPA, when a “delay” may represent the time it takes for
multiple agencies to coordinate a response to complicated project proposals that may
require compliance with multiple local, state, and federal environmental laws.
This report provides an overview of NEPA requirements relevant to the
hurricanes response and recovery efforts, its application to emergency and
nonemergency actions related to the disaster, NEPA’s role in two past flood and
hurricane control projects that have been discussed in the press, and legislative
proposals that relate to the NEPA process. It will be updated as developments
warrant.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
NEPA Provisions Relevant to the Hurricanes . . . . . . . . . . . . . . . . . . . . . . . . 1
NEPA Exemptions and Alternative Arrangements . . . . . . . . . . . . . . . . . . . . 3
NEPA’s Role in Past Flood Control Projects . . . . . . . . . . . . . . . . . . . . . . . . 4
Lake Pontchartrain and Vicinity Barrier Project . . . . . . . . . . . . . . . . . . 5
Mississippi River Flood Control Project . . . . . . . . . . . . . . . . . . . . . . . . 6
NEPA’s Role in Long-Term Response Actions . . . . . . . . . . . . . . . . . . . . . . 7
Legislative Proposals Regarding Hurricane Recovery Projects . . . . . . . 7
Legislative Proposals Regarding Energy Development Projects . . . . . . 8

NEPA and Hurricane Response,
Recovery, and Rebuilding Efforts
Introduction
In the wake of Hurricanes Katrina and Rita, the federal government has engaged
in a variety of actions in response to the disaster and will continue to be involved in
actions to help the Gulf Coast states recover and rebuild. Many of the actions
proposed in relation to the disaster would require compliance with local, state, and
federal environmental laws and regulations.
The requirements of the National Environmental Policy Act of 1969 (NEPA, 42
U.S.C. § 4321 et seq.) have drawn particular attention from some Members of
Congress and other interested stakeholders (e.g., professional associations,
community organizations, and environmental groups). Among other provisions,
NEPA generally requires federal agencies to assess the environmental impacts of an
action before proceeding with it.
Emergency response actions, such as providing essential relief to victims,
managing disaster debris, and repairing or restoring public facilities damaged by the
disaster, are exempted from NEPA’s requirements under provisions of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). NEPA’s
environmental review requirements may, however, be applicable to long-term
recovery projects, such as the construction of new flood control mechanisms.
NEPA Provisions Relevant to the Hurricanes
NEPA requires all federal agencies to consider the environmental impacts of a
proposed action before proceeding with it. To document such consideration, NEPA
requires the preparation of an environmental impact statement (EIS) for federal
actions that will significantly impact the environment.1 The “significance” of an
action’s environmental impacts must be determined case-by-case, based on an
analysis of the context and intensity of the impacts.2 If it is not clear whether a
project would have significant impacts, an Environmental Assessment (EA) must be
prepared in order to make that determination.
1 For more information about NEPA’s requirements, see CRS Report RL33152, The
National Environmental Policy Act: Background and Implementation, by Linda Luther, and
CRS Report RS20621, Overview of NEPA Requirements, by Pamela Baldwin.
2 40 C.F.R. § 1508.27.

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Regulations that specify how agencies must implement NEPA’s EIS
requirements were promulgated in 1978 by the Council on Environmental Quality
(CEQ) in the Executive Office of the President.3 In addition, CEQ regulations
directed federal agencies to adopt and enforce their own regulations or procedures
implementing NEPA’s environmental review requirements that are specific to typical
classes of actions undertaken by that agency.4 The CEQ regulations also directed
agencies to develop categories of actions that are determined through agency
experience to typically have no significant environmental impact, and thus may
generally be categorically excluded from the requirement to prepare an EA or EIS.
Such actions are referred to as categorical exclusions.
NEPA has been interpreted to be a procedural statute that does not require
agencies to elevate environmental concerns above others. Instead, NEPA requires
only that the agency assess the environmental consequences of an action and its
alternatives before proceeding. If the adverse environmental effects of the proposed
action are adequately identified and evaluated, the agency is not constrained by
NEPA from deciding that other benefits outweigh the environmental costs and
moving forward with the action.
Most agencies use NEPA as an umbrella statute, meaning it is a framework to
coordinate or demonstrate compliance with any studies, reviews, or consultations
required by any other environmental laws. The use of NEPA in this capacity can lead
to confusion. The need to comply with another environmental law, such as the Clean
Water Act or Endangered Species Act, may be identified within the framework of the
NEPA process, but NEPA itself is not the source of the obligation.
Unlike other environment-related statutes, no individual agency has enforcement
authority with regard to NEPA’s environmental review requirements.5 This lack of
enforcement authority is sometimes cited as the reason that litigation is chosen as an
avenue by individuals and/or groups that disagree with how an agency meets NEPA’s
mandate or EIS requirements for a given project (e.g., they may charge that an EIS
is inadequate or that the environmental impacts of an action will in fact be significant
when an agency claims that they are not). Critics of the NEPA process charge that
individuals and/or groups who disapprove of a federal project will use litigation to
delay or halt it. Others argue that litigation only results when agencies do not comply
with NEPA’s procedural requirements.
3 40 C.F.R. §§ 1500 et seq.
4 Two agencies that will play a significant role in response and recovery actions are the
Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers
(the Corps). Each agency has its own regulations to guide its implementation of NEPA.
Those environmental regulations can be found at 44 CFR § 10 (FEMA) and 33 CFR § 230
(the Corps) .
5 CEQ is charged with providing oversight and guidance to agencies with regard to EIS
preparation. EPA is required to review and comment publicly on the environmental impacts
of proposed federal activities, including those for which an EIS is prepared. EPA is also the
official recipient of all EISs prepared by federal agencies. However, neither agency has
enforcement authority with regard to an agency’s environmental review requirements.

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NEPA Exemptions and Alternative Arrangements
In responding to emergencies and major disasters, existing provisions of the
Stafford Act or CEQ’s regulations either statutorily exempt certain activities from
NEPA or allow for alternative means of complying with CEQ’s regulatory
provisions. Certain response actions specifically excluded from NEPA by the
Stafford Act (at 42 U.S.C. § 5159) include the following:
! The provision of certain federal resources or assistance essential to
meeting immediate threats to life and property resulting from a
major disaster. (See actions specified under 42 U.S.C. §§ 5170a and
5170b.)
! The repair, restoration, and replacement, to pre-disaster condition,
of public facilities or certain private nonprofit facilities, damaged or
destroyed by a major disaster. (See 42 U.S.C. § 5172.)
! Debris removal from public or private land after a major disaster.
(See 42 U.S.C. § 5173.)
It is important to understand that, as with actions that are categorically excluded,
an action statutorily excluded from NEPA is not exempt from the requirements of the
other environmental statutes. An agency would still be responsible for complying
with all other applicable local, state, and federal laws and regulations relating to
health, safety, and the environment.6 This would encompass federal environmental
statutes including, among others: the Clean Air Act, the Clean Water Act, the
Resource Conservation and Recovery Act (RCRA), the Coastal Zone Management
Act, the Coastal Barrier Resources Act, the Endangered Species Act, and the
National Historic Preservation Act.
In addition to statutory exclusions to NEPA, CEQ regulations allow for
“Alternative Arrangements” in the event of an emergency.7 In such circumstances,
the federal agency taking an action should consult with CEQ about what those
arrangements may be and the time frame within which they must be completed.
These Alternative Arrangements do not waive the requirement to comply with NEPA
regulations, but establish an alternative means of compliance. Agencies and CEQ are
to limit such arrangements to actions necessary to control the immediate impacts of
the emergency. For example, in 1998, the U.S. Forest Service worked with CEQ to
establish alternative regulatory compliance arrangements to implement emergency
actions to restore portions of approximately 103,000 acres of forested lands on the
National Forests and Grasslands in Texas that were damaged by a windstorm. The
agency believed it would have taken up to six months using normal NEPA
6 Local, state, and federal environmental laws and regulations may still provide some
exemption or regulatory allowance in the event of an emergency.
7 40 CFR § 1506.11. The Corps has regulatory provisions similar to CEQ’s that address
emergency actions. FEMA’s regulations reference statutory exemptions provided under the
Stafford Act.

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procedures before it could start restoring the damaged ecosystem, which included
critical habitat for the red-cockaded woodpecker and bald eagle.8
On September 8, 2005, CEQ released a memorandum that provides guidance
on “emergency Alternative Arrangements” under NEPA that are specific to
Hurricane Katrina.9 According to CEQ, activities that may be completed in
accordance with these arrangements include the disposal of unsorted disaster debris
(waste that includes both hazardous and nonhazardous constituents) at a specific site
or the permanent replacement of certain major facilities.
On March 23, 2006, FEMA published a notice specifying Alternative
Arrangements for agency grants to repair or reconstruct critical infrastructure in the
New Orleans Metropolitan Area.10 “Critical infrastructure” includes:
! Hospitals and health-care facilities,
! Utilities and wastewater treatment plants,
! Permanent police and fire stations,
! Government and court administration buildings,
! Detention centers (jails), and
! Permanent schools.
If the reconstruction at issue simply restored previously existing facilities to pre-
disaster conditions, the action would be exempt from NEPA under the Stafford Act
(see discussion of 42 U.S.C. § 5159, above). However, FEMA anticipates that grant
applications from Louisiana “will more strongly reflect future demands than
returning to pre-disaster conditions. Proposed projects will not necessarily be the
same size, nature or location; will use current building codes, and construction
methods; and take advantage of current community and urban planning principles,
and hazard mitigation opportunities.”11 Under such conditions, NEPA would apply.
NEPA’s Role in Past Flood Control Projects
NEPA’s role in two past flood control projects has received attention in the
press in the wake of Katrina, 12 which, in turn, has draw the attention of some
8 March 23, 1999 statement of Sandra Key, Associate Deputy Chief, Programs and
Legislation, U.S. Department of Agriculture’s Forest Service, before the Subcommittee on
Forests and Forest Health, U.S. House of Representatives Committee on Resources, Hearing
Concerning Chairman’s Draft Legislation on Alternative NEPA Arrangements.
9 See “Emergency Actions and NEPA” at [http://ceq.eh.doe.gov/nepa/nepanet.htm], as of
March 24, 2006.
10 71 Federal Register 14712-14716; see also FEMA’s webpage “Alternative Arrangements:
National Environmental Policy Act Alternative Arrangements for Rebuilding Critical
Physical Infrastructure in the New Orleans Metropolitan Area,” at
[http://www.fema.gov/ehp/noma/], as of March 24, 2006.
11 71 Federal Register 14715.
12 The two original articles, that have since been cited in other press accounts, are Ralph
(continued...)

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Members of Congress.13 At issue in those press accounts is whether or not NEPA-
related litigation played a role in delaying New Orleans hurricane and flood
protection projects.14
Lake Pontchartrain and Vicinity Barrier Project. The Lake
Pontchartrain and Vicinity Barrier Project was approved by Congress in the Flood
Control Act of 1965. The original design would have involved the construction of
a barrier system at the entrances to Lake Pontchartrain to protect New Orleans from
storm surges. In 1974, the Corps issued a final EIS for the project. In response, a
group of community and environmental organizations, including a group called
“Save our Wetlands,” filed suit asserting that the Corps’ EIS did not comply with
NEPA.15 The group argued that the Corps had not considered the impact that the
barrier system would have on local fisheries and that, they argued, alternative
hurricane protection measures, such as building up existing levees, had not been
considered.
In 1977, Judge Charles Schwartz, Jr. ruled that the Corps’ final EIS did not
comply with the requirements of NEPA. However, in his ruling, the judge stated:
[This] opinion should in no way be construed as precluding the Lake
Pontchartrain project as proposed or reflecting on its advisability in any manner.
The Court’s opinion is limited strictly to the finding that the environmental
impact statement of August, 1974 for this project was legally inadequate. Upon
proper compliance with the law with regard to the impact statement this
injunction will be dissolved and any hurricane plan thus properly presented will
be allowed to proceed.
In response to the court injunction, the Corps conducted a re-evaluation study
of the project. The study concluded that the barrier plan should be abandoned in
favor of a “high-level plan.” The high-level plan included a variety of elements
including raising and strengthening existing hurricane protection levee systems;
completing certain hurricane protection levee systems; repairing and rehabilitating
seawalls; and building new hurricane levees.16 According to a 1982 GAO report,
12 (...continued)
Vartabedian and Peter Pae’s “A Barrier That Could Have Been,” Los Angeles Times,
September 9, 2005; and John Berlau’s, “Greens vs. Levees: Destructive river-management
philosophy,” The National Review Online, September 8, 2005.
13 See House Committee on Resources’ NEPA Task Force, press release “U.S. Reps to
Review Environmental Reg’s Role In Affordable Energy, Post-Katrina Development,”
September 9, 2005, available at [http://resourcescommittee.house.gov/nepataskforce/press/
0809virginia.htm], as of March 24, 2006.
14 For legal analysis of the case law related to these projects, please contact the CRS
American Law Division.
15 Save Our Wetlands v. Rush; the Judge’s Order, as well as background information
regarding the case, posted by Save Our Wetlands, is available at
[http://www.saveourwetlands.org/hbpnotsaved.html], as of March 24, 2006.
16 The Corps’ Water Resources Development in Louisiana 1998, see “Lake Pontchartrain
(continued...)

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upon reevaluating the project alternatives, the Corps found that making more
protective levees and flood walls would be more cost effective than inlet barriers.17
The outcome, then, was that the Corps pursued alternative flood protection
systems; it is difficult to know whether the Corps would have ultimately proceeded
with the original barrier plan absent the requirement to improve its EIS and the
opposition to the project by some members of the public. Nor is it possible to know
whether the original plan would have been more successful in protecting New
Orleans.
Mississippi River Flood Control Project. The second project discussed
in the press relates to a Mississippi River flood control project involving over 1,610
miles of flood control protection. Completion of the entire project will require
construction of 128 separate components across seven states, including Louisiana.
The primary purpose of the project is improved flood protection from the Mississippi
River, not hurricane protection (e.g., storm surge from the Gulf of Mexico).
The final EIS for the project was completed in 1976. In 1996, the Mississippi
River Basin Alliance, with other conservation groups, filed suit on the basis that a
supplemental EIS was needed to account for new information and new circumstances
that had arisen over the previous 20 years; and changes to the project since the final
EIS was issued. Settlement negotiations in the case resulted in a Consent Decree that
obligated the Corps to prepare a supplemental EIS. The Consent Decree included a
provision that allowed the Corps to proceed with project components scheduled for
construction, while a supplemental EIS was being prepared for the segment of the
levee at issue.18 According to the parties in this case, the levee segment at issue is
located primarily between Vicksburg, Mississippi and Baton Rouge, Louisiana, 100
miles north of New Orleans.
After distributing the supplemental EIS, and receiving public comment on it, the
Corps issued its final EIS in July of 1998. Subsequently, the Mississippi River Basin
Alliance and others filed suit again, this time charging that the 1998 final EIS was
16 (...continued)
and Breton Sound Basins,” with discussion of the Lake Pontchartrain and Vicinity
Hurricane Protection, pp. 106-107, available online at [http://www.mvn.usace.army.mil/
pao/bro/wat%5Fres98/], as of March 24, 2006. For information regarding the status of the
Project before Hurricane Katrina, see the Corps’ Current Project List, online at
[http://www.mvn.usace.army.mil/pd/projsasp/mainlist.asp], as of March 24, 2006.
17 General Accounting Office, Report to the Secretary of the Army: “Improved Planning
Needed By The Corps Of Engineers To Resolve Environmental, Technical, And Financial
Issues On The Lake Pontchartrain Hurricane Protection Project,” GAO/MASAD-82-39,
August 17,1982, available online at [http://archive.gao.gov/d42t14/119206.pdf], as of March
24, 2006.
18 Terms of the Consent Decree in this case were provided in a September 22, 2005
telephone interview with Melissa Samet, an attorney with American Rivers, a party to the
case.

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deficient.19 One of their claims was that the alternatives analysis (a required element
of an EIS) failed to adequately evaluate an appropriate range of alternatives.
However, a U.S. District Court ruled, and a Circuit Court affirmed, that the Corps
had satisfied NEPA’s requirement. In delineating its standard of review in the case,
the Circuit Court stated that “NEPA exists to ensure a process, not a result.”20 The
Corps was free to continue with this project and it is now in the construction stage.
There is no information available to suggest that the Corps’ work on the
segment of the project in southern Louisiana (that could affect river flooding in New
Orleans) was delayed by this litigation.
NEPA’s Role in Long-Term Response Actions
NEPA’s role in two broad categories of federal actions has drawn the attention
of some Members of Congress. The first category includes projects intended to
facilitate the long-term recovery of the impacted region. These actions include those
taken in direct response to Katrina and Rita. Examples of such projects may include
flood-control or hurricane protection projects (e.g., new wetlands restoration projects
or new levee construction projects); and federally-funded construction of new
housing (as opposed to federal funding of the repair or reconstruction of previously
existing housing or projects that were covered under an existing NEPA analysis).
The second category of actions may include those undertaken as an indirect result of
the two hurricanes. Primarily, these include energy development projects undertaken
in response to increased oil and natural gas prices (e.g., oil exploration projects and
expedited refinery permitting and construction).
Both classes of projects would not likely qualify for the Stafford Act exemptions
or Alternative Arrangements that apply under emergency conditions. However, it is
not unprecedented for Congress to provide statutory exemptions to NEPA or to
specify changes in environmental review requirements for specific projects.21 Such
exemptions and changes to the NEPA process are found in a variety of current
legislative proposals that would either waive NEPA or streamline its provisions for
certain hurricane recovery projects or energy development projects, two of which are
discussed below.
Legislative Proposals Regarding Hurricane Recovery Projects.
Current legislative proposals go beyond the existing provisions of the Stafford Act
that exempt from NEPA activities that repair, restore, and replace public facilities or
private nonprofit facilities, damaged or destroyed by a major disaster. Introduced on
September 22, 2005, in the Senate (S. 1765) and on September 28, 2005, in the
House (H.R. 3958), “The Louisiana Katrina Reconstruction Act” would exempt
certain projects from NEPA. Under § 501 of the bill, a commission known as the
“Protecting Essential Louisiana Infrastructure, Citizens and Nature Commission,”
19 Mississippi River Basin Alliance v. Westphal, 230 F.3d 170 (5th Cir. 2000).
20 Ibid, 175.
21 See CRS Report 98-417, Statutory Modifications of the Application of NEPA, by Pamela
Baldwin.

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referred to as the Pelican Commission, would be established. One duty of the Pelican
Commission would be to enter into a contract with the Corps to develop a work plan
for the design and implementation of programs intended to
! Protect the Louisiana coastal area from future flooding and
devastation caused by hurricanes;
! Restore and reconstruct critical wetlands; and
! Provide for navigational interests.22
In developing the work plan, projects within the “major disaster area” declared
by the President on August 29, 2005 would be considered “priority projects.” Also
included as priority projects are, at a minimum, certain hurricane protection projects
(including the Lake Pontchartrain and Vicinity Barrier Project, discussed above);
Louisiana Coastal Area ecosystem restoration and storm surge protection projects;
flood control projects; and navigation projects.
Projects implemented by the Pelican Commission in accordance with the work
plan would be deemed to comply with all applicable requirements of NEPA.23 In
addition to waivers of NEPA’s requirements, § 502 of the bills would allow the
President, for the two-year period after enactment of the bill, to issue an emergency
permit for:
[A]ny project carried out in response to, or as a part of the reconstruction effort
relating to, Hurricane Katrina or a related condition, as the President determines
to be in the best interests of the United States.
The types of projects that would qualify for an emergency Presidential permit
are broader than the types of projects that may qualify for a NEPA waiver under the
Pelican Commission’s work plan. These projects would also be exempted from
NEPA under §§ 652 — Authority to facilitate reconstruction.24 Under that section,
it is specified that the President’s emergency permitting authority applies to the
authority of: the Administrator of the Environmental Protection Agency and the
Secretary of Agriculture with regard to the application of pesticides to control the
mosquito population (under the Federal Water Pollution Control Act and the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et. seq.)); and the
Secretaries of Agriculture and the Interior with regard to laws to expedite salvaging
timber in the area and securing timber supply for the pulp and paper industry.
Further, with regard to the Presidential emergency permitting process, any project or
activity relating to the recovery, reconstruction, or repair in any area deemed a major
disaster area would not be required to complete a statement or analysis (i.e., an EIS
or EA) under any law or regulation administered by the CEQ.
Legislative Proposals Regarding Energy Development Projects.
During the passage of the Energy Policy Act of 2005 (P.L. 109-58, H.R. 6), NEPA’s
22 S. 1765 and H.R. 3958, § 501(d)(1).
23 S. 1765 and H.R. 3958, § 501(d)(8).
24 S. 1765 and H.R. 3958, under Title VI — Hurricane Protection and Environmental
Restoration, Chapter 4 — Environmental Regulations.

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potential role in delaying certain energy development projects was debated. It was
charged by some Members of Congress that changes to the NEPA implementation
process were needed to reduce delays and more efficiently facilitate delivery of
needed projects. Other Members of Congress argued that delays attributed to the
NEPA process may be the result of a variety of factors such as poor implementation
of already-existing regulations (either individual agency or CEQ regulations).
The Energy Policy Act of 2005 includes a variety of provisions that are intended
to expedite the process for completing or complying with NEPA’s environmental
review requirements (for more information about these provisions, see CRS Report
RL32873, Key Environmental Issues in the Energy Policy Act of 2005 (P.L. 109-58,
H.R. 6), coordinated by Brent D. Yacobucci). In the wake of Hurricanes Katrina and
Rita, some Members of Congress have begun to look at additional legislative
proposals to expedite NEPA. The projects drawing the most attention are those that
involve expanding refinery capacity. This may include waiving environmental
requirements, including NEPA, for siting and permitting new and expanded
refineries. The first such bill, the “Fuel Supply Improvement Act of 2005” (H.R.
3836), was introduced by Congressman Shadegg on September 20, 2005. The bill
specifies expedited refinery permitting requirements that would be applicable to
refinery repair or reconstruction at an “existing refinery undertaken in the area
affected by Hurricane Katrina and undertaken as a result of Hurricane Katrina.”
On October 7, the “Gasoline for America’s Security Act of 2005” (H.R. 3893)
passed in the House. The stated intent of the bill is to expedite the construction of
new refining capacity in the United States. Among other measures, the bill would
provide for presidential designation of potential refinery sites on federal lands and
military bases that are closing. The bill would also expedite the process for
complying with certain environmental requirements by establishing “process
coordination” procedures for obtaining certain “federal authorizations.” The bill
defines federal authorizations as permits, special use authorizations, certifications,
opinions, or other approvals required under federal law. The process coordination
procedures (including the authorization to establish deadlines and certain limits on
judicial review) would apply, at the request of a state governor, to the process for
obtaining necessary federal authorizations for the siting, construction, expansion, or
operation of any new refining capacity (§§ 101-102) and the siting of crude oil or
refined petroleum product pipeline facilities (§§ 201-202).
The process coordination procedures appear to apply only to the procedures for
obtaining federal authorizations, not to the environmental review process under
NEPA. However, under § 102(b) the bill would designate the Department of Energy
as the lead agency for coordinating applicable federal authorizations and any related
environmental reviews for refineries. Similarly, under § 202(b), the Federal Energy
Regulatory Commission would be designated as the lead agency for coordinating
applicable federal authorizations and any related environmental reviews for pipeline
facilities