CONGRESSIO RESEARCH SERVICE LIBRARY OF CONGRESS rr::::1ii"‘”e'$iI§°ivv'ii I Hi 01 :"jrnn; -10 86172 Colum WI! 3 ll rtiiiiiwmx ENERGY MOBILIZATION BOARD: A COBPARISON OF S. 1308 and H.R. 4985 (THE PRIORITY ENERGY PROJECT ACT OF 1979) ISSUE BRIEF NUHBER IB79126 ’ AUTHOR: Trumbule, Robert 3. Environment and Natural Resources Policy Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE I MAJOR ISSUES SYSTEM DATE OBIGINATED ggggggzg DATE UPDATED gggggggg FOR ADDITIONAL INFORMATION CALL 287-5700 0123 CBS- 1 IB79126 UPDATE-O1/22/80 I.§§EZ§..2§.1i'I..1!LI_3EQ! Both the Senate and the House have passed similar versions of the Priority Energy Project Act of 1979. Both provide for an Energy Mobilization Board to accept and act on applications by sponsors of energy projects for priority status. Once a project is designated a priority project, each bill provides a process for establishing a project decision schedule whereby permitting, licensing, and other decisions impacting upon the siting and construction of an energy project can be accomplished in an expedited fashion. Each has a procedure for enforcement of the project decision schedule. Each modifies the NEPA process and each restricts judicial review. The Senate and House are now in conference to resolve differences in the two bills. This paper highlights the major concepts contained in each bill and attempts to show where major differences occur. Attached are (1) a “flow chart" comparison of actions required under each version of the bill and (2) a fact sheet, prepared by the staff of the Senate Energy and Natural Resources Committee, providing a summary of tentative agreements reached by conferees and showing where differences still exist. 3. 1308 establishes an Energy Mobilization Board’ (EMB) consisting of a chairman and three members appointed by the President with the advice and consent of the Senate. The chairman is to be a full—time, level I executive; members are part—time and are compensated at a rate also equal to level I Federal executives. The Senate bill subjects members to conflict of interest provisions requiring disclosure and divestiture of iholdings relating to energy. Except for decisions relating to the designation of priority energy projects, which requires the concurrence of the chairman and two of the three members of the Board, the chairman has final and exclusive decision-maxing authority. The members act in an advisory capacity; 5. 1308 also requires an executive level III General Counsel, Presfdentially appointed with the advice and consent of the Senate. H.R. 4985 calls for an EMB with five members appointed by the President with the advice and consent of the Senate. The President is to designate one member as chairman. The Chairman is to be compensated at a rate equal to that of level III of the Executive Schedule. other members are to receive payment at a level IV rate, while a Presidentially appointed General Counsel is to receive level V pay. The House bill does not define. the relationship of the Chairman and members in the decision-making process. Both bills call for similar processes to be used in designating priority energy projects. rhfter application and notice in the Federal Register, a public comment period is provided. The EMB thenl determines, based on specified criteria, whether the project is to receive priority status. This decision is not subject to judicial review, although 5. 1308 makes a denial cns— 2 1379125 UPDATE-0 1/22/so of priority status judicially reviewable. For designation, the Senate bill requires the chairman plus two of the three members to concur. The House bill does not specify how the decision is reached. Total time fro" application to designation (or denial): about 90 days for the House bill; L days for the Senate version. - - E.§.'32él3.LI5H1‘1BNT 9E._A...1.'i.5lQQ3CI~.2§§I5I.Q!..§QE.E2QL§ Bach bill requires the BHB to establish a project decision schedule (PDS) for any project given priority status. In both bills the time allowed from designation to issuance of a PDS is 60 days. In each bill the first action after designation in notification of the governor of any State involved. The House version allows the governor to appoint a non—voting member to participate in BMB decisions regarding the particular project affecting that State. ' Next, agencies must, within 30 days of designation, transmit lists of significant actions to be taken, actions required by applicantts), tentative decision schedules, personnel and funding available within each agency to implement such decision schedules, and potential impact on other agencies. The two versions of the bills differ somewhat in what is required, with S. 1308 being somewhat more detailed in what is required of States. v Finally, 30 days after the agencies have submitted their information, the BMB is to publish a project decision schedule. The goal of such a schedule is to establish deadlines by which agency decisions= are to be made. Tn Senate sets as a goal, a 2-year project decision schedule, while the House calls for a 12 month schedule “to the maximum extent practicable." NEPA COMPLIANCE Both bills call for an expedited compliance process with the National Environmental Policy Act (NBPA) to begin after designation of a priority energy project, and within deadlines in a yproject "decision schedule. The Senate version specifies detailed guidance on how procedural modifications of NEPA would be integrated with the energy “fast track." First, S. 1308 exempts both the designation process and the promulgation or revision of a project decision schedule from NEPA requirements for preparation of an envrionmental impact statement, thus limiting the environmental assessments to individual projects proposals. The Senate bill also requires that the BBB determine if any Federal action relating to a priority energy project will be,. a major Federal action significantly affecting the quality of the human environment as defined by NBPA. This decision by the BBB is immediately subject to judicial review. « If the BHB makes such a determination, then it may require "any or all Federal agencies“ to prepare only one final environmental impact statement. The Board, after consultation with the icouncil on Environmental Quali" (CBQ), is to designate a lead agency to prepare the BIS. This lead agency is to consult with State and local officials to ensure that the single BIS will comply with Statel and local BIS requirements. Additional pre-exemptive powers are given to the Board for ensuring expedited completion of the BIS process on a schedule. cns-— 3 IB79126 UPDATE-O1/22/80 S. 1308 also states that no Federal agency shall issue a final decision on ljor Federal action until at least 15 days after the EIS has been completed. (Existing regulations allow 30 days notice.) H.R. A985 is less specific in regard to modifications in NBPA requirements: projects will be subject to most of the existing CEQ regulations. The House proposal calls for CEQ to determine if any Federal action will be “major” under the NEPA criteria and, if so, to designate a lead agency “to comply with NEPA.“ The Board could take over these determinations of any major actions requiring EIS's, and of lead agency designations if the Council failed to act “before‘ establishment of the Project Decision Schedule." The Board also may direct that only one EIS be prepared and that it will be used by all Federal agencies to satisfy their NEPA obligations. m B These provisions in the House bill for assigning general BIS responsibilities between the Board, the CEQ, and agencies would grant the Board less detailed authority for enforcing or expediting NEPA's impact statement requirements, although the Board could accomplish the expeditious NEPA compliance through its power to limit total time of a project decision schedule to 12 months from the date of application. Senate provisions specify a 2 year schedule, but with a 1-year ,limit on Federal agency decisions for public land energy development. Additional authority in both bills for the Board to take over agency decision-making further enhances its expediting authority under most laws, while the H6use~authorized process for "diving most laws which impede schedules would? accomplish an additional lpediting function. ‘ " °" Under H.R. 4985, if an agency fails gor is likely to fail to make a decision in compliance with the project decision schedule, the EMB will provide notice of this fact and #5 days later will hold an informal hearing to determine the cause of the delay and actions taken to achieve compliance. After an additional 30 days, the EMB may, under certain conditions, modify the project decision schedule by extending it; "However, the BBB may instead choose to make the decision for the agency or it may recommend a waiver of any Federal requirement qthat is deemed the cause of the delay. This provision for waiver of substantive Federal requirements constitutes a major difference in the two versions of this proposed Act. The Senate has no such provision except in a "grandfather" clause. ' If the BBB chooses to make a decision for the agency involved, notifications of the decision to do so must be provided, the agency must transmit to the BMB all pertinent records, and the EHB “shall promptly issue a recommended decision." This decision is to be pbulished in the Federal Register and transmitted to the President and to the governor of the State affected by the decision. The decision is to be consistent with any ' quirement established by Federal, State, or local law which otherwise would L4 applicable. Within 45 days of receipt of the Board's recommendation, the President must either affirm the decision, in which case the decision becomes final, or he must remand it to the EMB for modification. The Board will then "promptly" issue a final decision. Failure by the President to either affirm or remand the recommended decision results in the recommended decision becoming final. cns— 4 IB79126 UPDATE-O1/22/80 A decision reached by the EMB in lieu of an agency is judicially reviewable in the same manner as if it were an agency decision. If the Board recommends to the ~President a waiver of any Federal requirement(s) that it finds is causing undue delay, the .President has 30 days in which to act by recommending such a waiver to Congress. Congress has 60 calendar days of continuous session in which to act. Both the senate and House of Representatives must approve the waiver for it to take effect. The PDS enforcement mechanism in S. 1308 is somewhat different. If the Energy Mobilization Board finds that any Federal, State, or local agency has failed to comply with a PDS it can notify the agency that it will make the agency's decision for it.‘ In that case, all pertinent agency records are to be transmitted to the EMB. within 60 days the EMB is to make the decision in lieu of the agency. In following this procedure, the EMB must apply the decision criteria in the Federal, State, or local law that would haven been applied if the agency in question had made the decision. v S. 1308 provides for another PDS enforcement in the event that any Federal, State, or local agency has failed or is likely to fail to comply with a PDS. In this case, the EMB can bring an enforcement action in United States district court. The court, within 60 days, is to either order the agency to take action or, if the_action would be impractical or would deny anyone due process, it can instruct the EMB to regise the PDS. aazvna or LAE§_EA§§§9-AFT§§.2BQQ§Q$_£§-Q§§l§EA$§2 H.R. 4985 has a "grandfather" clause which allows the Board to either (1) suspend for up to 5 years or (2) recommend to the President a waiver in whole or in part of any Federal, State, or local law enacted after approval of a project decision schedule but before commencement of commercial operation of any priority energy project. Any suspension must be accompanied by "good faith" efforts on the part of an operator of a priority energy project to comply with the Federal, State, or local requirement in question.‘ A waiver: recommendation goes to the President who, if he concurs, submits the recommendation to both Houses of Congress for approval. .The Board's determinations under this grandfather clause are not subject to judicial review. A Similarly, 5. 1308 allows waiver of any Federal, State, or local law enacted or promulgated after commencement of construction of a priority ‘energy project for “only such time as necessary to allow compliance with such law or regulation.“ A majority vote of the Board is required and itn must find that significant delay would occur if the waiver were not allowed. Both the Administrator of the EPA and the Secretary of Interior can veto such a ‘ waiver if it would .cause substantial endangerment to public health or irretrievable loss of fish and wildlife. The President must concur in these vetos if they are to remain valid. 3.B.£QB.l'§-QE-l3B.§._§9.§.B.2 S. 1308 requires an annual (or more frequent) report to Congress on: CBS"5 IB79126 UPDATE-O1/22/80 (1) current status of activities and "programs being iconducted by the _aard; (2) the status of each priority energy project including_ any delays and causes thereof; (3) the need for legislation to expedite priority energy projects or legislation to waiver Federal, STate, or local laws. The EMB must also.report annually, commencing no later than Dec. 31, 1981, a list of all Federal laws. and regulations that significantly hinder completion of energy projects including an analysis of why they do so. H.B. 4985 contains identical language requiring such a report. other reporting requirement under H.R. 4985 are less detailed than in S. 1308. For example, in addition to requirements to provide Congress and its committees and subcommittees any information requested, EMB must keep the senate Committee on Energy and Natural Resources and the House Committees on Interior and Insualr Affairs and on Interstate and Foreign Commerce and the Committee on Science and Technology “fully informed of its activities.“ an annual report on its activities is required but details are not specified. 9..Q.2£.‘E2£é.L-13.1-5ii'..1.3§.‘.‘. Both bills restrict judicial review. H.R. 4985,prohibits judicial review of EMB actions designating or not designating any energy project as a priority energy project, establishing or revising a project decision schedule, or revoking a priority project designation. Waiver recommendations by the Board or waiver determinations ,by the President are also not reviewable unless such a waiver is inconsistant with that section of the bill which prohibits waivers for certain rights and laws. (See preceeding section.) Decisions made by the Board in lieu of agency actions are reviewable just as if the agency itself had made the decision. 5. 1308 also denies judicial review of EMB decisions designation projects as priority energy projects. However, decisions denying designation are reviewable. Review of actions pursuant to the Act or the validity of the Act itself are reviewable but petitions for review must be brought no later than twenty days after the date of final notice of any agency action being challenged. The reasonableness of any deadline established by a project decision schedule is also reviewable but a petition for review in this case must be brought within 30 days after such a deadline is listed and published. 5. 1308 calls for challenges to the Act and reviews of deadlines, etc., to be carried out in the Temporary Emergency Court of Appeals are to be heard by the Supreme Court. Both bills automatically include or exclude certain projects as priority energy projects. Both, of course, exclude nuclear energy projects. H.R. H985 also excludes the Alaska Natural Gas Transportation System from actions under this Act. The Northern Tier Pipeline (Title V of the Public iutility CRS- 6 IB79126 UPDATE—01/22/80 Regulatory Policies Act of 1978) is also exluded unless the President determines the provisions of this Act can expedite the Northern Tier project even more. ’ v The Senate bill automatically designates powerplants converting to coal as priority projects; 011 and gas drilling activities on Federal land are also given automatic priority status. The Senate bill would also include the Alaska Natural Gas Transportation System but only if use of the Act would expedite its construction. Both bills clearly exclude water law from the "fast track“ process. EA-I§§-.13§Q!1l§£TI9.fl§ Since in some situations H.B. #985 allows waiver of substantive Federal law, it was necessary to include a list of those rights and laws which cannot receive a waiver. These include requirements relating to: (1) rights, working conditions, compensation, or activities of workers; (2) antitrust laws; (3) criminal laws; (Q) civil rights laws; (5) primary air quality standards established under the Clean Air Act; and (6) water rights. January 17, 1980 STATUS OF THE ENERGY MOBILIZATION BOARD CONFERENCE* I. SUMMARY OF TENTATIVE AGREEMENTS BY CONFEREES Composition of the Board (1) (5)‘ The Energy Mobilization Board would consist of 3 members appointed by the President subject to the advice and consent of the Senate. The Chairman would serve at the pleasure of the President. Members would serve for two year terms. The terms would be staggered. The Chairman would have management authority for all negotiations. Final actions of the Board would be subject to the public meeting requirements of the Sunshine Act, but preliminary negotiations and deliberaé tions would be exempt. The Administrative Procedure Act would apply to the Board, but most actions of the Board, including designations of priority projects and establishment of project decision schedules would be by informal order (for which the APA does not require specific procedures). '7 Governors could appoint nonfvoting representa- tives to participate with the Board only in matters relating to the designated project._ Designation of Priority Projects/Project Decision Schedules (1) The Board would designate priority energy projects after considering the twelve factors set out in the House bill (economic costs, impact of project on reducing imports, environmental impacts, etc.). The Board would have authority to set deadlines for Federal, State and local agency decisions in- volving priority energy projects. To the maximum extent practicable, deadlines must require agencies to decide within one year after an application is made. - National Environmental Policy Act and Comparable State Laws (1) (2) CEQ would decide if an‘EIS is necessary and would appoint the lead agency. However, if the CEQ fails to perform its duties within the time specified, the Board would act in its stead. The Board may determine that a single BIS should be prepared and used by all Federal agencies with jurisdiction over the priority energy project. *Prepared by the Senate staff. The Summary is unofficial and does not reflect all of the provisions and clarifications agreed upon by the Conferees, nor does it describe all the significant differences between the Senate and House bills. — IIO The Board may also require that the Federally- prepared BIS substitute for any comparable state or local requirement provided that the BIS covers all matters that must be covered under the state or local law. The Board may not require that th BIS substitute for the state or local requirement, however, unless the lead agency has been unable to negotiate an agreement for voluntary cooperation with the State or local agency prior to forty—five days after establishment of the Project Decision Schedule. ' MAJOR OUTSTANDING ISSUES DISCUSSED BUT NOT RESOLVED BY CONFEREES Waiver and Grandfather Provisions ‘Senate Bill (1) (2) Waivers: The Senate bill does not have a general waiver of law provision. The Board could waive the application State or local law to a project if the law is Grandfather: of any Federal, (with certain specified exceptions) -enacted after commencement ofgconstruction of the. project. The waiver could last only for such time as is necessary to allow compliance with the law -without causing delay in commencement of operation of the project. The EPA Administrator and the Secretary of Interior could disapprove the waiver for specified reasons, but the President could override the EPA or DOI disapproval. House Bill (1) (2) ‘ Waivers: The Board could recommend that the President propose to Congress the waiver of any Federal requirement (including state laws enacted pursuant to Federal requirements) that poses a substantial impediment to any agency decision involving a priority energy project. (The House bill contains exceptions to the waiver provisions similar to those in the Senate bill.) The waiver would take effect if a proposal by the President is approved by both Housesrwithin 60 days. In considering waiver proposals, both Houses would follow procedures similar to those in EPCA for energy actions. Grandfather: The Board could temporarily suspend the application of any law to a priority energy project if the law was enacted after promulgation of the Project Decision Schedule for that project but before commencement of commercial operation of the project. The suspension could not last longer than five years after commencement of operation of the project. Alternatively, the Board could recommend to the President that he propose to Congress the permanent waiver of any law enacted after establish- ment of the PDS but before commencement of con- struction. If the President proposed a permanent waiver to Congress, the waiver would take effect only if it is approved by both Houses within 60 days under expedited procedures. Current Status The last formal offer on the waiver/grandfather issue was made by the Senate. The Senate offer did not include any general waiver provision but did expand the scope of the grandfather clause beyond the Senate bill. Under the offer, the Board could temporarily suspend or recommend a permanent waiver of any law enacted after commencement of construction or establishment of the PDS (whichever is earlier) but before operation of the priority energy project. Before granting a temporary suspension, the Board must consult EPA and DOI, but the two agencies could not disapprove the Board's decision. A suspension granted by the Board could not last longer than five years after operation of the project began. However, the Board could recommend to the President that he propose a permanent waiver to Congress. The waiver would take effect only if it was approved by both Houses within 60 days under expedited procedures. Streamlined Procedures Senate Bill Federal, State and local agencies would be authorized ‘to adopt streamlined procedures for priority energy projects. These procedures would allow agencies to (l) shorten time periods required by . other laws, (2) substitute informal or "hybrid" hearings for formal, trial-type hearings; (3) eliminate unnecessary duplication, and (4) consolidate proceedings with other agencies. In addition, the Board could require that Federal agencies use some or all of the streamlined procedures authorized by the act. House Bill Federal, state and local agencies would be authorized to modify time schedules required by other laws. Agencies could also consolidate their proceedings. Agencies would not have authority, however, to substitute informal for formal hearings, nor could the Board require agencies to use streamlined ~« procedures. f _Current Status The last formal offer on this subject was made by the Senate Conferees. They offered the Senate provision. The previous offer from the House ° proposed that the Conferees accept the House provision. Enforcement - Court Orders/Bump-Up Senate Bill. The Board would have authority to seek a court order to enforce deadlines on the Project Decision Schedule. Courts could issue orders enforcing the deadlines in any case in which a Federal, State, or local agency had failed or was reasonably likely to fail to meet a deadline. In addition, the Board could issue a decision in lieu of any Federal, State or local agency that had failed to meet a deadline established by the Board. House Bill The House bill does not clearly give the Board authority to obtain court orders enforcing its deadlines. If any Federal, State or local agency failed to meet a deadline established by the Board or was reasonably likely to fail to meet a deadline, the Board could recommend that the President issue a decision in lieu of the agency. The Board could make-such a recommendation only after conducting a hearing (on 45 days‘ notice) on the causes for the agency's delay. The President could issue the decision recommended by the Board, or instruct the Board to revise its recommended decision. Current Status The last offer was made by the Senate Conferees. They offered the Senate provision. Judicial‘Review Current Status. The Conferees have not reached an agreement on the question of judicial review.;.However, it appears that the House is willing to accept several major provisions in the Senate bill. The House offer on December 17 agreed to give TECA exclusive appellate- jurisdiction over all cases involving priority energy projects provided there is-some basis for Federal jurisdiction. TECA would have broad authority to expedite review of cases involving priority energy projects. , A few important issues involving judicial review remain. Under the House bill, decisions of the ‘Board denying priority status.to a project are not subject to judicial review; under the Senate bill, the same decisions arebreviewable. The Conferees have not resolved this‘difference. Another unresolved difference involves the authority of the Board to appear as a party in agency and court proceedings involving priority energy projects. The Senate bill would require the Board to appear as a party in judicial proceedings; the House bill would merely permit the Board to participate in court proceedings where necessary to carry out its functions under the Act. . Finally, the House and Senate Conferees have not agreed on judicial review of actions by the Board which are purely administrative (e.g. hiring, leasing space, etc.). The House proposal would give the district courts jurisdiction over such actions in the first instance with appeals going to TECA.- Under the Senate bill, appeals would go directly from the Board to TECA. III. MAJOR ISSUES NOT YET DISCUSSED ‘BY THE courrasrs Projects Automatically Qualifying for Expedited Treatment Senate Bill The Board must designate any project for converting an oil or gas-fired electric generating plant to coal as a priority energy project if a priority designation is requested. The Board must also designate any prospective small hydroelectric facility as a priority energy project if such designation is requested. In addition, Federal agencies responsible for approving exploration or development on Federal land for coal, oil or gas must grant or deny approval within one year of receiving an application. Federal agencies responsible for approving permits to drill for oil and gas on leased, on—shore Federal lands would be required to act within lOO days of receiving an application. House Bill The House bill has a similar provision granting coal conversion projects automatic fast tract ,status. However, the House bill contains no comparable provisions for small-scale hydroelectric facilities or for exploration, development or drilling on Federal lands. Projects Exempt from Fast Track Treatment The House amendment excludes the Northern Tier Pipeline from the fast track unless the President decides to apply all or part of the fast track procedures to it. The Senate bill does not contain ‘a comparable provision. ' Other Issues There are several other important differences between the Senate and House bills, e.g. jurisdiction of the Board over Indian lands, whether the validity of deadlines set by the Board should be judged using an "outcome determinative test“ and others. These issues may have to be discussed by the Conferees unless the staff can reach an agreement which is acceptable to the conference committee Members. LIBRARY OF WASHINGTON UNIVERSITY ST. LOUIS - MO.