Senate Legislative Counsel, Draft copy of ELT22557 0PR Released September 21, 2022
This week, Senator Joe Manchin released an updated draft of a permitting bill that is the product of a deal brokered by the senator for his support for the Inflation Reduction Act. Generally, the bill aims to reduce regulatory barriers to federal approvals of infrastructure projects. Most controversially, the bill directs federal agencies to approve the Mountain Valley pipeline, a natural gas pipeline through Virginia and West Virginia that is over 90% constructed but has been delayed due to various permitting disputes.
The bill contains two subtitles, each with different objectives. The first subtitle (Subtitle A, “Accelerating Agency Reviews”) outlines broad permitting reforms intended to expedite agency decision-making on infrastructure permitting. Although the environmental interests have expressed opposition to the bill, it has the potential to streamline permitting of both renewable and conventional energy projects.
Within Subtitle A, section 12 outlines a variety of measures that attempt to streamline permitting of projects that require multiple federal approvals and preparation of an environmental impact statement. Most significant, this section would impose a 150-day statute of limitations for judicial challenges to such projects. Additionally, this section proposes to identify roles and requirements of a lead permitting agency, coordinate cooperating and participating agencies, and require preparation of a single National Environmental Policy Act (NEPA) analysis to the extent practicable and legal. This section would also require agencies to establish project schedules and establish maximum lengths for public comment periods during the permitting process. Moreover, this section would require federal agencies to develop new categorical exclusions under NEPA.
Many of these measures are not novel. They resemble the permitting efficiencies available for projects that qualify for treatment under Title 41 of the Fixing America’s Surface Transportation (FAST) Act, as amended by the Bipartisan Infrastructure Law, and/or those efficiencies outlined in the now-revoked Executive Order No. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (Aug. 15, 2017). Thus, the permitting bill reflects a congressional recognition that these measures are necessary to improve infrastructure permitting.
For a subset of infrastructure projects, section 13 within Subtitle A would offer even more efficiencies. It requires the President to identify 25 projects of “strategic national importance” in various industries and sectors. Initially, four such projects must relate to critical minerals; six projects must relate to generation or storage of electricity from non-fossil sources or manufacturing of clean energy equipment; five projects must relate to fossil fuels or biofuels; two projects must relate to electronic transmission or grid-enhancements; two projects must relate to carbon capture, transportation, or storage; and one project must relate to clean hydrogen. The President must maintain and update this list of projects for 10 years.
For these projects of strategic national important, the bill would impose timelines for environmental review. The bill attempts to give teeth to these deadlines by requiring the President to submit regular reports to congressional committees on the status of these projects. Additionally, the bill provides additional funding for environmental reviews of these projects.
The second subtitle in the bill (Subtitle B, “Modernizing Permitting Laws”) contains a section specific to the Mountain Valley Pipeline. After finding that the Mountain Valley Pipeline is in the national interest, section 24 of the bill would direct federal agencies to re-issue approvals necessary for the pipeline that a federal court of appeals had vacated and remanded. The bill would also exempt these approvals from further judicial review. All other federal approvals relating to the validity of section 24 and the Mountain Valley Pipeline would be subject to review by the U.S. Court of Appeals for the District of Columbia Circuit.
Section 23 of Subtitle B would amend the Natural Gas Act to include hydrogen in the definition of “natural gas.” The remaining sections of Subtitle B are not summarized in this article but are nonetheless significant. Section 21 would amend the Clean Water Act to streamline decision-making under section 401. Section 22 would amend the Federal Power Act, 16 USC 824a(2).
Senator Manchin may attach the permitting bill to legislation funding the federal government. Whether Congress will enact the permitting bill into law, however, depends on the whims of politics. Republicans have suggested the bill does not propose meaningful permitting reforms, while progressives are resisting the proposal to authorize the Mountain Valley pipeline. Thus, it is difficult to predict whether the changes proposed in the permitting bill will become final.
Subtitle A – Accelerating Agency Reviews
Section 11 – Definitions
Section one contains definitions that are necessary to understand the provisions in sections two and three:
Agency – any agency, department, or other unit of Federal, State, local, or Tribal government
Authorization – any license, permit, approval, finding or other administrative decision required or authorized under Federal law (including regulations) to design, plan, site, construct, reconstruct, or commence operations of a project.
Cooperating Agency – any Federal agency (and a State, Tribal, or local agency if agreed on by the lead agency) other than a lead agency, that has jurisdiction by law or special expertise with respect to an environmental impact relating to a project.
Environmental Document – any of the following, as prepared under NEPA:
An environmental assessment (EA).
A finding of no significant impact.
An environmental impact statement (EIS).
A record of decision.
Environmental impact statement
Environmental review process – the process for preparing an EIS, EA, categorical exclusion, or other document required to be prepared to achieve compliance with NEPA, including pre-application consultation and scoping processes.
Lead Agency – with respect to a project, means (A) the Federal agency preparing, or assuming primary responsibility for, the authorization or review of the project; and (B) if applicable, at State, local, or Tribal government entity serving as a joint lead agency for the project.
NEPA implementing regulations
Participating Agency – an agency participating in an environmental review or authorization for a project
Project Sponsor – an entity, including any private, public, or public-private entity, that seeks authorization for a project.
Section 12 – Streamlining Process for Authorizations and Reviews of Energy and Natural Resources Projects
Categorical exclusion – means within the meaning of NEPA
Major project – a project (A) for which multiple authorizations, reviews, or studies are required under a Federal law other than NEPA; and (B) with respect to which the head of the lead agency has determined that (i) an EIS is required; or (ii) an EA is required, and the project sponsor requests that the project be treated as a major project.
Project – means a project (A) proposed for the construction of infrastructure (i) to produce, generate, store, or transport energy; (ii) to capture, remove, transport, or store carbon dioxide; or (iii) to mine, extract, beneficiate, or process minerals; and (B) that, if implemented as proposed by the project sponsor, would be subject to the requirements that (i) an environmental document be prepared; and (ii) the applicable agency issue an authorization of the activity.
Secretary Concerned means, as appropriate – (A) the Secretary of Agriculture, with respect to the Forest Service; (B) the Secretary of Energy; (C) the Secretary of the Interior; (D) the Federal Energy Regulatory Commission; (E) the Secretary of the Army, with respect to the Corps of Engineers; and (F) the Secretary of Transportation, with respect to the Maritime Administration.
(b) Applicability – the project development procedures under this section:
Shall apply to (i) all projects for which an EIS is prepared; and (ii) all major projects.
May apply, as requested by a project sponsor and to the extent determined appropriate by the Secretary concerned, to other projects for which an environmental document is prepared.
Shall not apply to
(i) any project subject to section 139 of title 23, USC;
(ii) any project that is a water resources development project of the Corps of Engineers; or
(iii) any authorization of the Corps of Engineers if that authorization is for a project that alters or modifies a water resources development project of the Corps of Engineers.
Does not preclude the use of an authority provided under any other provision of law including for a covered project under title 41 of the FAST Act.
(c) Lead Agencies - requirements
Expedite Resolution of Environmental Review Process. Shall have the authority and responsibility to take such actions as are necessary and appropriate to facilitate the expeditious resolution of the environmental review process for the project.
Prepare Environmental Documents. Shall have the authority and responsibility to prepare any required EIS or other environmental document or to ensure that same are completed in accordance with this section and applicable Federal law.
Identify and Invite Participating Agencies. Shall not later than 45 days after the date of publication of a notice of intent to prepare an EIS or the initiation of an EA, as applicable, for a project:
Identify any other agencies that may have financing, environmental review, authorization, or other responsibilities with respect to the project.
Invite the identified agencies to become participating agencies in the environmental review process for the project.
Establish, as part of the invitation, a deadline for the submission of a response, which may be extended by the lead agency for good cause.
Use of Data, Analyses, and Documentation prepared under State or Tribal Laws and Procedures. Shall consider and, as appropriate, rely on, adopt, or incorporate by reference, baseline data, analyses, and documentation that have been prepared for the project under the laws and procedures of a State or an Indian Tribe if the lead agency determines that those laws are of equal or greater rigor, and the data, analysis, or documentation was prepared under circumstances that allowed for opportunities for pubic participation; consideration of alternatives and environmental consequences; and other required analyses that are substantially equivalent to what would have been prepared by the lead agency pursuant to NEPA.
Compliance With Design and Mitigation Commitments. Shall ensure that the project sponsor complies with design and mitigation commitments for the project made jointly by the lead agency and the project sponsor.
Supplementation of Environmental Document. Shall ensure that the environmental documents are appropriately supplemented if changes become necessary with respect to the project.
(d) Participating Agencies
Applicability – excludes covered projects under section 41001 of the FAST Act.
Mandatory designation of invited federal agencies. Any Federal agency that is invited by a lead agency to participate in the environmental review process for a project shall be designated as a participating agency by the lead agency, unless the invited agency informs the lead agency, in writing, that the invited agency has no responsibility for or interest in the project.
A participating agency shall provide comments, responses, studies, or methodologies relating to the areas within their special expertise or jurisdiction; and shall use the environmental review process to address any environmental issues of concern to the agency.
Federal Cooperating Agencies. A Federal agency that has not been invited to participate in the environmental review process for a project but that is required to make an authorization or carry out an action for a project shall notify the lead agency and work with the lead agency to ensure that the agency making the authorization or carrying out the action is treated as a cooperating agency for the project.
Any agency designated as a cooperating agency shall also be designated by the applicable lead agency as a participating agency under the NEPA implementing regulations.
(e) Coordination of Required Environmental Reviews.
Application of the FAST Act – Coordination of Required Environmental Reviews and Authorizations. The lead agency and each participating agency for a project shall apply the requirements of section 41005 of the FAST Act (42 USC 4370m-4) to the project, subject to the condition that any reference in that section to a “covered project” shall be considered a reference to the project under this section.
Single Environmental Document. To the maximum extent practicable and consistent with Federal law, to achieve compliance with NEPA, all Federal authorizations and reviews that are necessary for a project shall rely on a single environmental document. [Subject to specified exceptions.] To the maximum extent practicable, the lead agency shall develop environmental documents sufficient to satisfy the NEPA requirements for any authorization or other Federal action required for the project. Each participating agency shall cooperate with the lead agency and provide timely information to assist the lead agency in carrying out the requirement for a single environmental document.
(f) Modification of draft environmental impact statement by errata sheets. If the lead agency modifies the draft EIS in response to comments, the lead agency may write on errata sheets attached to the EIS in lieu of rewiring the EIS, subject to specified conditions (such as modifications shall be confined to minor factual corrections; or an explanation of the reasons why the comments do not warrant additional response from the lead agency).
(g) Coordination Plan and Scheduling
90 Days to establish coordination plan. Not later than 90 days after the date of publication of a notice of intent to prepare an EIS, or the initiation of an EA, as applicable, the lead agency shall establish a plan for coordinating public and agency participation in, and comment regarding, the environmental review process and authorization decisions for the project or appliable category of projects.
Establish and maintain schedule. Lead agency shall establish and maintain a schedule for completion of the environmental review process and authorization decisions.
Major Project Schedule – 2 years for EIS and 2 year for EA. To the maximum extent practicable and consistent with applicable federal law, in the case of a major project, the lead agency shall develop a schedule that is consistent with completing:
The environmental review process - not later than 2 years after the date of publication of the lead agency of a notice of intent to prepare an EIS or not later than 1 year after the date on which the head of the lead agency determines that an EA is required to a finding of no significant impact.
Authorizations required for project construction – not later than 180 days after the date of issuance of a record of decision or a finding of no significant impact.
Modification of Schedule. Factors for consideration in establishing a schedule are provided in the bill. Provisions for lengthening or shortening a schedule for good cause are provided in the bill.
Failure to Meet Deadline. If a participating Federal Agency fails to meet a schedule deadline, the participating Federal agency shall notify the Office of Management and Budget and the Secretary concerned regarding that failure.
Comment Deadlines. The lead agency shall also establish the following deadlines for comment during the environmental review process:
60 days for agencies and the public on draft EIS – not more than 60 days after public in the Federal Register of a notice of the date of public availability of the draft [subject to specified exceptions]
45 days for all other comment periods – for all other comment periods established by the lead agency for agency or public comment for a Federal authorization or in the environmental review process, a period of not more than 45 days beginning on the first date of availability of the materials regarding which comment is request, unless a different deadline of not more than 60 days is established by agreement of the lead agency and all participating agencies, in consultation with the project sponsor.
No reduction in public comment time periods. Nothing in this subsection reduces any time period provided for (i) public comment in the environmental review process; or (ii) an authorization for a project under applicable Federal law.
Nothing in this subsection creates a requirement for an additional public comment opportunity in addition to any public comment opportunity required for a project under applicable Federal law. Nothing in this subsection creates a new requirement for public comment on a project for which an EA is being prepared. Nothing in this subsection affects or creates new requirements for a project or activity eligible for a categorical exclusion.
(h) Issue Identification and Resolution
Lead agency and each participating agency shall work cooperatively in accordance with this section to identify and resolve issues that could:
(A) delay final decision making for any authorization for a project;
(B) delay completion of the environmental review process for a project; or
(C) result in the denial of any authorization required for the project under applicable law.
Accelerated Issue Resolution and Referral
(A) Issue resolution meeting to be conducted by the lead agency to resolve issues – if requested by a participating agency, project sponsor, or the Governor of a State in which a project is located. Initial meeting - not later than 30 days after receipt of a request.
Lead agency can also convene an issue resolution meeting at any time to resolve issues, without request.
(B) Elevation to the head of the lead agency – if resolution is not achieved by 30 days after the date of the initial meeting, elevated to the head of the lead agency. Leadership issue resolution meeting to be convened not later than 90 days after the date of the initial meeting.
(C) Referral to the Council on Environmental Quality – if resolution is not achieved by 30 days after the date on which a leadership issue resolution meeting is convened. To be conveyed by the Council not later than 30 days after the date of receipt of a referral.
(D) Referral to the President – if resolution not achieved by 30 days after the date of the meeting convened by the Council on Environmental Quality.
(i) Enhanced Technical Assistance by the Lead Agency. At the request of a project sponsor, participating agency, or the Governor or a state in which a covered project is located, the head of the lead agency may provide technical assistance to resolve any outstanding issues that are resulting in project delay including by:
(A) providing additional staff, training, and expertise;
(B) facilitating interagency coordination;
(C) promoting more efficient collaboration; and
(D) supplying specialized onsite assistance.
A covered project in this subsection is a project (A) that has a pending environmental review or authorization under NEPA; and (B) for which the lead agency determines a delay to the schedule is likely.
(j) Judicial review and savings clauses
Except as provided in subsection (k) [150 day statute of limitations for claims], nothing in this section affects the reviewability of any final Federal agency action in a court of the United States or any State.
Does not supersede, amend, or modify NEPA or any Federal environmental law; or affect the responsibility of any Federal officer to comply with or enforce any Federal law.
Does not preempt or interfere with (A) any practice of seeking, considering, or responding to public comment; (B) any power, jurisdiction, responsibility, or authority of a Federal, State, or local government agency, Indian Tribe, or project sponsor with respect to carrying out a project; or (C) any other provision of law applicable to a project, plan, or program.
(k) Statute of Limitations, Remands, and Judicial Review
150 days to file claims
Notwithstanding any other provision of law
A claim arising under Federal law seeking judicial review of an authorization issued or denied by a Federal agency for a project shall be barred unless the claim is filed by 150 days after the later of the date on which the authorization is final in accordance with the law under which the agency action is taken and the date of publication of a notice that the environmental document is final in accordance with NEPA, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed.
Supplemental or revised environmental documents – considered a separate final agency action for purposes of the 150-day limit.
If a court remands an agency action for a project to a federal agency, the court must set a reasonable schedule and deadline for the agency to act on remand. The deadline may not exceed 180 days from the date of the court order unless a longer time period is necessary to comply with applicable law. Federal agencies must take necessary actions for the expeditious disposition of an action on remand in accordance with this schedule.
Random Assignment of Cases
Federal district courts and courts of appeals must randomly assign cases seeking judicial review of a federal agency authorization for a project to avoid the appearance of favoritism or bias.
(l) Improving Transparency in Project Status – not later than 120 days after enactment of this Act
Secretary to make publicly available major project information
Status, schedule and progress of each major project with respect to compliance with NEPA, any authorization and any other Indian Tribe, State, or local agency authorization
List of participating agencies
Establish major project tracking reporting standards to track major projects from initiation through final authorizations or withdrawal of project and to update the information
Federal, State, and Local Agency Participation in Transparency
Federal participating agencies shall provide information to the Secretary regarding major project status. Secretary shall encourage State and local agencies participating in the environmental review process or authorization process for a major project to provide information.
(m) Secretaries to establish performance accountability systems for the agency represented by the Secretary concerned – within 1 ear after date of enactment of the Act
(n) Programmatic Compliance – Secretary concerned shall allow for the use of programmatic approaches to conduct environmental review that:
(A) eliminate repetitive discussions of the same issue;
(B) focus on the issues ripe for analysis at each level of review; and
(C) are consistent with (i) NEPA; and other applicable laws.
Details provided in the draft bill.
(o) Development of Categorical Exclusions – 180 days after enactment of the Act and every 4 years thereafter
Each Secretary concerned, in consultation with the Chair of the Council on Environmental Quality, shall:
(A) in consultation with other listed agencies, as applicable, identify each categorical exclusion available to such an agency that would accelerate delivery of a project if the categorial exclusion was available to the Secretary concerned; and
(B) collect existing documentation and substantiating information relating to each categorial exclusion identified.
Department of Agriculture
Department of the Army
Department of Commerce
Department of Defense
Department of Energy
Department of Interior
Any other Federal agency that has participated in an environmental review process for a project, as determined by the Chair of the Council on Environmental Quality
Not later than 1 year after date on which categorial exclusions are identified, each Secretary shall:
Determine whether such categorial exclusion meets the applicable criteria for a categorial exclusion under the NEPA implementing regulations; and any relevant regulations of the agency represented by the Secretary Concerned.
Public a notice of proposed rulemaking to propose the adoption of any identified categorical exclusions that meet the above criteria.
(p) Additions to Categorial Exclusions – surveys within 180 days after enactment of the Act, and not later than 5 years thereafter
Each Secretary to conduct a survey regarding the use by the agency of categorical exclusions for projects during the preceding 5 year period
Public a review of the survey
Solicit from relevant project sponsors requests for new categorical exclusions.
Not later than 120 days after the date of the solicitation of requests for new categorical exclusions, the Secretary shall:
Public a notice of proposed rulemaking to propose the adoption of any such new categorical exclusions to the extent they meet the applicable criteria under NEPA and any relevant regulations.
Section 13 – Prioritizing Energy Projects of Strategic National Importance
Critical mineral has the meaning given the term in section 7002(a) of the Energy Act of 2020 (30 USC 1606(a). That definition is:
The term “critical mineral” means any mineral, element, substance, or material designated as critical by the Secretary under subsection (c).
“Secretary” refers to the Secretary of Energy.
Designated Project – an energy project of strategic national importance designated for priority Federal Review.
(b) Designation of Projects – not later than 90 days after enactment of the Act – 25 projects of strategic national importance to be designated:
The President, in consultation with the Secretary of Energy, Secretary of the Interior, the Administrator of the Environmental Protection Agency, FERC, and the heads of any other relevant Federal departments or agencies, as determined by the President to designate 25 energy projects of strategic national importance for priority Federal Review, and publish a list of the designated projects in the Federal Register.
Updates – not later than 180 days after date of publication of the list in the Federal Register and every 180 days thereafter during the 10-year period after publication, the President shall publish an updated list, which shall:
Include not less than 24 designated projects; and
Include each previously designated project until a final decision or withdrawal
Project types – during the 7 year period beginning on the date of publication of the first list, not fewer than:
(A) 4 projects for mining, extraction, beneficiation or processing of critical minerals (not fewer than 3 shall include new mining or extraction); and for which critical mineral production may occur as a byproduct.
(B) 6 shall be projects to generate electricity or store energy without the use of fossil fuels; or to manufacture clean energy equipment.
(C) 5 shall be projects to produce, process, transport, or store fossil fuel products, or biofuels, including projects to export or import those products from certain specified nations.
(D) 2 shall be electric transmission projects or projects using grid-enhancing technology.
(E) 2 shall be projects to capture, transport, or store carbon dioxide, which may include the utilization of captured or displaced carbon dioxide emissions.
(F) 1 shall be a project to produce, transport, or store clean hydrogen, including projects to export or import those products from certain specified nations.
Project types – during the 3 year period beginning 7 years after the date of publication of the first list, not fewer than:
(A) 2 shall be projects for the mining, extraction beneficiation, or processing of critical mineral
(B) 3 shall be projects described in (B) above
(C) 3 shall be projects described in (C) above
(D) 1 shall be a project described in (D) above
(E) 1 shall be a project described in (E) above
(F) 1 shall be a project described in (F) above.
President to maintain a list of the designated projects that meet the minimum threshold for the applicable category – during the 10-year period after publication of the first list.
If insufficient applications, minimum threshold does not apply until there is a sufficient number of applications meeting the requirements for a designated project.
(c) Selection and Priority Requirements
Projects selected based on a review of applications for authorizations or other reviews submitted to the Corp of Engineers, the Department of Defense, the Department of Energy, the Department of the Interior, the Forest Service, the FERC, the Nuclear Regulatory Commission, the Maritime Administration, and the Federal Permitting Improvement Steering Council.
President shall designate only projects that the President determines are likely:
(A) to require an EA or EIS under NEPA,
(B) require review by more than 2 Federal or State agencies
(C) have a total project cost of more than $250 million; and
(D) have sufficient financial support from the project sponsor to ensure project completion.
President shall give priority to projects the completion of which will significantly advance 1 or more of the following objectives:
(1) reducing energy prices in the US
(2) reducing greenhouse gas emissions
(3) improving electric reliability in North America
(4) advancing emerging energy technologies
(5) improving the domestic supply chains for, and manufacturing of, energy products, energy equipment, and critical minerals,
(6) increasing energy trade between the US and nations that are signatories to free trade agreements with the US that cover the trade of energy products; members of NATO; members of the Organization for Economic Cooperation and Development; nations with a transmission operator that is included in the European Network of Transmission System Operators for Electricity, including as an observer member; or any other country designated as an ally or partner nation by the President for purposes of this section.
(7) reducing the reliance of the US on the supply chains of foreign entities of concern as defined in section 40207 of the Infrastructure Investment and Jobs Act, 42 USC 1874(a)
(8) to the extent practicable, minimizing development impacts through use of existing rights-of-way, facilities; or other infrastructure.
(9) creating jobs with wages at rates not less than those prevailing on similar projects in the locality as determined by the Secretary of Labor; and with consideration of the magnitude and timing of the direct and indirect employment impacts of carrying out the project.
Other priority – In addition to the priorities specified above, the President shall give priority to projects the completion of which will significantly reduce greenhouse gas emissions, including projects that involve or enable switching from a higher-emitting energy source to a lower-emitting energy source; or replacing a higher-emitting facility with a lower-emitting facility, including through modernization of an existing facility.
(d) Prioritizing completion of environmental review process and authorizations for designated projects
The President, in consultation with the applicable department and agency heads, the Director of the Office of Management and Budget, the Chair of the Council o Environmental Quality, and the Federal Permitting Improvement Steering Council, direct Federal agencies through executive order to prioritize the completion of the environmental review process and authorizations for designated projects.
Timelines – to the maximum extent practicable and consistent with Federal law, the President shall seek to complete:
Any environmental review process:
If EIS required, not later than 2 years after date of publication of notice of intent to prepare an EIS
If an EA is required, not later than 1 year after the date on which the head of the lead agency determines that an EA is required to a finding of no significant impact
Any outstanding authorizations required for project construction – within 180 days of the issuance of a record of decision or finding of no significant impact
A designated project is a major project under section 2 of the Act.
Prioritization following court action
President to ensure that any Federal review or authorization for a designated project that is remanded or vacated by a court of law is prioritized for further agency action.
(e) NEPA – not modified by this section.
The act of designating a project shall not be subject to NEPA.
(f) Reports – 180 days after enactment and every 90 days thereafter
President to submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Energy and Commerce and the Committee on Natural Resources of the House, report describing each designated project, basis for designation, outstanding authorizations, environmental reviews, consultations, public comment periods, or other Federal, State, or local reviews required for project completion, and estimated completion dates or explanations of delays regarding same.
(g) Funding – Out of the $350 million appropriated to the Federal Permitting Improvement Steering Committee’s Environmental Review Improvement Fund in the Inflation Reduction Act for fiscal year 2023, $250 million shall be used to provide funding to agencies to support more efficient, accurate, and timely reviews of designated projects. ($1.5 million limit per designated project.) Does not supplant existing funding mechanisms.
Sections 23 and 24 of Subtitle B – Modernizing Permitting Laws
Section 23 – Definition of Natural Gas under the Natural Gas Act
Amends the definition of “natural gas” in section 2 of the Natural Gas Act, 15 USC 717a, to include hydrogen, either mixed or unmixed with natural gas.
Section 24 – Authorization of Mountain Valley Pipeline
(a) Finding – Congress finds that timely completion of the Mountain Valley Pipeline is in the national interest and is necessary to ensure an adequate and reliable supply of natural gas to consumers at reasonable prices, facilitate an orderly transition of the energy industry to cleaner fuels, and reduce carbon emissions.
(b) Purpose – Purpose is to require federal agencies to take all necessary actions to permit the timely completion of construction and operation of the Mountain Valley Pipeline without further administrative judicial delay or impediment.
(c) Definitions – “Secretary” means the Secretaries of Agriculture, Interior, or the Army.
(d) Authorization of necessary approvals
Requires the following actions within 30 days of enactment of the act:
The Secretary of the Interior must issue a biological opinion and incidental take statement for the Mountain Valley Pipeline, substantially in the form of the biological opinion and incidental take statement for the project issued by the U.S. Fish and Wildlife Service on September 4, 2020.
The Secretary of the Interior must issue all rights-of-way, permits, leases, and other authorizations for the construction, operation, and maintenance of the Mountain Valley Pipeline, substantially in the form approved in the BLM’s record of decision dated January 14, 2021.
The Secretary of Agriculture must amend the Land and Resource Management Plan for the Jefferson National Forest as necessary to permit the construction, operation, and maintenance of the Mountain Valley Pipeline, substantially in the form approved in the Forest Service’s dated January 2021.
The Secretary of the Army shall issue all permits and verifications necessary to permit the construction, operation, and maintenance of the Mountain Valley Pipeline across waters of the United States.
FERC shall approve any amendments to the certificate of public convenience and necessity issued by the Commission on October 13, 2017 (161 FERC 61,043) and grant any extensions necessary to permit the construction, operation, and maintenance of the Mountain Valley Pipeline.
(e) Authority to modify prior decisions or approvals – Allows the relevant Secretary to modify the approvals described in section (d) if the Secretary determines the modification is necessary to correct a deficiency in the record or to protect the public interest or the environment.
(f) Relationship to other laws – The provisions of (d) supersede the provisions of other laws and regulations relating to relating to an administrative determination as to whether the biological opinion, incidental take statement, right-of-way, amendment, permit, verification, or other authorization shall be issued for the Mountain Valley Pipeline.
(g) Judicial review
The actions described in section (d) shall not be subject to judicial review.
The U.S. Court of Appeals for the District of Columbia Circuit has original and exclusive jurisdiction over claims challenging the invalidity of section 24 of the act, alleging an action is beyond the scope of authority conferred by section 24, and relating to any action by a Secretary or FERC relating to the Mountain Valley Pipeline.
 Efficient environmental reviews for project decision making and One Federal Decision – applies to any highway project, public transportation capital project, or multimodal project that, if implemented as proposed by the project sponsor, would require approval by any operating administration or secretarial office within the Department of Transportation.
 Section 7002 promotes a secure and robust critical minerals supply chain by (1) requiring the executive branch designate a list of critical minerals and update that list every three years; (2) requiring USGS to conduct domestic resource assessments of critical minerals and to make that information publicly available; (3) requiring the Department of the Interior and Department of Agriculture to publish critical mineral Federal Register notices within 45 days of being finalized; (4) directing the Secretary of Energy to conduct an RDD&CA program on the development of alternatives to, recycling of, and efficient production and use of critical materials (which may be carried out by DOE’s Critical Materials Energy Innovation Hub); (5) directing the Secretary of Energy and the Director of the Energy Information Administration to develop analytical and forecasting tools to evaluate critical minerals markets; (6) requiring the Secretary of Labor and the Director of the National Science Foundation to develop curriculum and a program for institutions of higher education to build a strong critical minerals workforce; and (7) reauthorizing the National Geological and Geophysical Data Preservation Program through fiscal year 2029.
 The U.S. Court of Appeals for the Fourth Circuit vacated and remanded the 2020 biological opinion and incidental take statement in Appalachian Voices v. U.S. Department of the Interior, 25 F.4th 259 (4th Cir. 2022).
 The U.S. Court of Appeals for the Fourth Circuit vacated and remanded this Record of Decision in Wild Virginia v. U.S. Forest Service, 24 F.4th 915 (4th Cir. 2022).
 The U.S. Court of Appeals for the Fourth Circuit vacated and remanded this Land and Resource Management Plan in Wild Virginia v. U.S. Forest Service, 24 F.4th 915 (4th Cir. 2022).