II 118TH CONGRESS 1ST SESSION S. 1399 To provide for American energy security by improving the permitting process. IN THE SENATE OF THE UNITED STATES MAY 2, 2023 Mr. MANCHIN introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To provide for American energy security by improving the permitting process. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Building American Energy Security Act of 2023’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. TITLE I—ACCELERATING AGENCY REVIEWS Sec. 101. Definitions. Sec. 102. Streamlining process for authorizations and reviews of energy and natural resources projects. Sec. 103. Prioritizing energy projects of strategic national importance. VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1399 IS Sec. 104. Empowering the Federal Permitting Improvement Steering Council and improving reviews. Sec. 105. Litigation transparency. TITLE II—MODERNIZING PERMITTING LAWS Sec. 201. Transmission. Sec. 202. Definition of natural gas under the Natural Gas Act. Sec. 203. Authorization of Mountain Valley Pipeline. Sec. 204. Rights-of-way across Indian land. Sec. 205. Federal Energy Regulatory Commission staffing. TITLE I—ACCELERATING 1 AGENCY REVIEWS 2 SEC. 101. DEFINITIONS. 3 In this title: 4 (1) AGENCY.—The term ‘‘agency’’ means any 5 agency, department, or other unit of Federal, State, 6 local, or Tribal government. 7 (2) ALASKA NATIVE CORPORATION.—The term 8 ‘‘Alaska Native Corporation’’ has the meaning given 9 the term ‘‘Native Corporation’’ in section 3 of the 10 Alaska Native Claims Settlement Act (43 U.S.C. 11 1602). 12 (3) AUTHORIZATION.—The term ‘‘authoriza- 13 tion’’ means any license, permit, approval, finding, 14 determination, interagency consultation, or other ad- 15 ministrative decision that is required or authorized 16 under Federal law (including regulations) to design, 17 plan, site, construct, reconstruct, or commence oper- 18 ations of a project, including any authorization de- 19 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1399 IS scribed in section 41001(3) of the FAST Act (42 1 U.S.C. 4370m(3)). 2 (4) COOPERATING AGENCY.—The term ‘‘cooper- 3 ating agency’’ means any Federal agency (and a 4 State, Tribal, or local agency if agreed on by the 5 lead agency), other than a lead agency, that has ju- 6 risdiction by law or special expertise with respect to 7 an environmental impact relating to a project. 8 (5) ENVIRONMENTAL DOCUMENT.—The term 9 ‘‘environmental document’’ includes any of the fol- 10 lowing, as prepared under NEPA: 11 (A) An environmental assessment. 12 (B) A finding of no significant impact. 13 (C) An environmental impact statement. 14 (D) A record of decision. 15 (6) ENVIRONMENTAL IMPACT STATEMENT.— 16 The term ‘‘environmental impact statement’’ means 17 the detailed statement of environmental impacts of 18 a project required to be prepared under NEPA. 19 (7) ENVIRONMENTAL REVIEW PROCESS.—The 20 term ‘‘environmental review process’’ means the 21 process for preparing an environmental impact state- 22 ment, environmental assessment, categorical exclu- 23 sion, or other document required to be prepared to 24 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1399 IS achieve compliance with NEPA, including pre-appli- 1 cation consultation and scoping processes. 2 (8) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 3 has the meaning given the term in section 102 of the 4 Federally Recognized Indian Tribe List Act of 1994 5 (25 U.S.C. 5130). 6 (9) LEAD AGENCY.—The term ‘‘lead agency’’, 7 with respect to a project, means— 8 (A) the Federal agency preparing, or as- 9 suming primary responsibility for, the author- 10 ization or review of the project; and 11 (B) if applicable, any State, local, or Trib- 12 al government entity serving as a joint lead 13 agency for the project. 14 (10) NEPA.—The term ‘‘NEPA’’ means the 15 National Environmental Policy Act of 1969 (42 16 U.S.C. 4321 et seq.) (including NEPA implementing 17 regulations). 18 (11) NEPA IMPLEMENTING REGULATIONS.— 19 The term ‘‘NEPA implementing regulations’’ means 20 the regulations in subpart A of chapter V of title 40, 21 Code of Federal Regulations (or successor regula- 22 tions). 23 (12) PARTICIPATING AGENCY.—The term ‘‘par- 24 ticipating agency’’ means an agency participating in 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1399 IS an environmental review or authorization for a 1 project. 2 (13) PROJECT SPONSOR.—The term ‘‘project 3 sponsor’’ means an entity, including any private, 4 public, or public-private entity, seeking an authoriza- 5 tion for a project. 6 SEC. 102. STREAMLINING PROCESS FOR AUTHORIZATIONS 7 AND REVIEWS OF ENERGY AND NATURAL RE- 8 SOURCES PROJECTS. 9 (a) DEFINITIONS.—In this section: 10 (1) CATEGORICAL EXCLUSION.—The term ‘‘cat- 11 egorical exclusion’’ means a categorical exclusion 12 within the meaning of NEPA. 13 (2) MAJOR PROJECT.—The term ‘‘major 14 project’’ means a project— 15 (A) for which multiple authorizations, re- 16 views, or studies are required under a Federal 17 law other than NEPA; and 18 (B) with respect to which the head of the 19 lead agency has determined that— 20 (i) an environmental impact statement 21 is required; or 22 (ii) an environmental assessment is 23 required, and the project sponsor requests 24 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1399 IS that the project be treated as a major 1 project. 2 (3) PROJECT.—The term ‘‘project’’ means a 3 project— 4 (A) proposed for the construction of infra- 5 structure— 6 (i) to develop, produce, generate, 7 store, transport, or distribute energy; 8 (ii) to capture, remove, transport, or 9 store carbon dioxide; or 10 (iii) to mine, extract, beneficiate, or 11 process minerals; and 12 (B) that, if implemented as proposed by 13 the project sponsor, would be subject to the re- 14 quirements that— 15 (i) an environmental document be pre- 16 pared; and 17 (ii) the applicable agency issue an au- 18 thorization of the activity. 19 (4) SECRETARY CONCERNED.—The term ‘‘Sec- 20 retary concerned’’ means, as appropriate— 21 (A) the Secretary of Agriculture, with re- 22 spect to the Forest Service; 23 (B) the Secretary of Energy; 24 (C) the Secretary of the Interior; 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1399 IS (D) the Federal Energy Regulatory Com- 1 mission; 2 (E) the Secretary of the Army, with re- 3 spect to the Corps of Engineers; and 4 (F) the Secretary of Transportation, with 5 respect to the Maritime Administration and the 6 Pipeline and Hazardous Materials Safety Ad- 7 ministration. 8 (b) APPLICABILITY.— 9 (1) IN GENERAL.—The project development 10 procedures under this section— 11 (A) shall apply to— 12 (i) all projects for which an environ- 13 mental impact statement is prepared; 14 (ii) all major projects; and 15 (iii) to the maximum extent prac- 16 ticable, projects described in clause (i) or 17 (ii) for which an authorization is being 18 sought or that are subject to an environ- 19 mental review process initiated prior to the 20 date of enactment of this Act; 21 (B) may be applied, as requested by a 22 project sponsor and to the extent determined 23 appropriate by the Secretary concerned, to 24 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1399 IS other projects for which an environmental docu- 1 ment is prepared; and 2 (C) shall not apply to— 3 (i) any project subject to section 139 4 of title 23, United States Code; 5 (ii) any project that is a water re- 6 sources development project of the Corps 7 of Engineers; or 8 (iii) any authorization of the Corps of 9 Engineers if that authorization is for a 10 project that alters or modifies a water re- 11 sources development project of the Corps 12 of Engineers. 13 (2) FLEXIBILITY.—Any authority provided by 14 this section may be exercised, and any requirement 15 established under this section may be satisfied, for 16 a project, class of projects, or program of projects. 17 (3) SAVINGS PROVISION.—Nothing in this sec- 18 tion— 19 (A) precludes the use of an authority pro- 20 vided under any other provision of law, includ- 21 ing for a covered project under title XLI of the 22 FAST Act (42 U.S.C. 4370m et seq.); 23 (B) supersedes or modifies any applicable 24 requirement, authority, or agency responsibility 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1399 IS provided under the National Environmental 1 Policy Act of 1969 (42 U.S.C. 4321 et seq.) or 2 any other provision of law; or 3 (C) shall be considered an abbreviated au- 4 thorization or environmental review process for 5 purposes of section 41001(6)(A)(i)(III) of the 6 FAST Act (42 U.S.C. 4370m(6)(A)(i)(III)). 7 (c) LEAD AGENCIES.— 8 (1) JOINT LEAD AGENCIES.—Nothing in this 9 section precludes an agency from serving as a joint 10 lead agency for a project, in accordance with NEPA. 11 (2) ROLES AND RESPONSIBILITIES.—With re- 12 spect to the environmental review process for a 13 project, the lead agency shall have the authority and 14 responsibility— 15 (A) to take such actions as are necessary 16 and appropriate to facilitate the expeditious res- 17 olution of the environmental review process for 18 the project; 19 (B) to prepare any required environmental 20 impact statement or other environmental docu- 21 ment, or to ensure that such an environmental 22 impact statement or environmental document is 23 completed, in accordance with this section and 24 applicable Federal law; 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1399 IS (C) not later than 45 days after the date 1 of publication of a notice of intent to prepare 2 an environmental impact statement, or the initi- 3 ation of an environmental assessment, as appli- 4 cable, for a project— 5 (i) to identify any other agencies that 6 may have financing, environmental review, 7 authorization, or other responsibilities with 8 respect to the project; 9 (ii) to invite the identified agencies to 10 become participating agencies in the envi- 11 ronmental review process for the project; 12 and 13 (iii) to establish, as part of the invita- 14 tion, a deadline for the submission of a re- 15 sponse, which may be extended by the lead 16 agency for good cause; 17 (D) to consider and respond to comments 18 timely received from participating agencies re- 19 lating to matters within the special expertise or 20 jurisdiction of those agencies; 21 (E) to consider, and, as appropriate, rely 22 on, adopt, or incorporate by reference, baseline 23 data, analyses, and documentation that have 24 been prepared for the project under the laws 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1399 IS and procedures of a State or an Indian Tribe 1 if the lead agency determines that— 2 (i) those laws and procedures are of 3 equal or greater rigor, as compared to each 4 applicable Federal law and procedure; and 5 (ii) the baseline data, analysis, or doc- 6 umentation, as applicable, was prepared 7 under circumstances that allowed for— 8 (I) opportunities for public par- 9 ticipation; 10 (II) consideration of alternatives 11 and environmental consequences; and 12 (III) other required analyses that 13 are substantially equivalent to the 14 analyses that would have been pre- 15 pared if the baseline data, analysis, or 16 documentation was prepared by the 17 lead agency pursuant to NEPA; and 18 (F)(i) to ensure that the project sponsor 19 complies with design and mitigation commit- 20 ments for the project made jointly by the lead 21 agency and the project sponsor; and 22 (ii) to ensure that environmental docu- 23 ments are appropriately supplemented if 24 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1399 IS changes become necessary with respect to the 1 project. 2 (d) PARTICIPATING AGENCIES.— 3 (1) APPLICABILITY.— 4 (A) INAPPLICABILITY TO COVERED 5 PROJECTS.—The procedures under this sub- 6 section shall not apply to a covered project (as 7 defined in section 41001 of the FAST Act (42 8 U.S.C. 4370m))— 9 (i) for which a project initiation notice 10 has been submitted pursuant to section 11 41003(a) of that Act (42 U.S.C. 4370m– 12 2(a)); and 13 (ii) that is carried out in accordance 14 with the procedures described in that no- 15 tice. 16 (B) DESIGNATIONS FOR CATEGORIES OF 17 PROJECTS.—The Secretary concerned may exer- 18 cise the authority under this subsection with re- 19 spect to— 20 (i) a project; 21 (ii) a class of projects; or 22 (iii) a program of projects. 23 (2) FEDERAL PARTICIPATING AGENCIES.—Any 24 Federal agency that is invited by a lead agency to 25 VerDate Sep 11 2014 03:05 May 11, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1399.IS S1399 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •S 1399 IS participate in the environmental review process for a 1 project shall be designated as a participating agency 2 by the lead agency, unless the invited agency in- 3 forms the lead agency, in writing, by the deadline 4 specified in the invitation, that the invited agency 5 has no responsibility for or interest in the project. 6 (3) FEDERAL COOPERATING AGENCIES.—A 7 Federal agency that has not been invited by a lead 8 agency to participate in the environmental review 9 process for a project, but that is required to make 10 an authorization or carry out an action for a project, 11 shall— 12 (A) notify the lead agency of the fina [Text truncated for display. 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