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:

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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:

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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 predisaster 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 NEPArelated 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

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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