II
113th CONGRESS
2d Session
S. 2314
IN THE SENATE OF THE UNITED STATES
May 8, 2014
Mr. Walsh introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To delegate to the Secretary of State the authority to approve or deny certain permits.
Short title
This Act may be cited as the Removing Repeated Executive Delays to Transboundary Approvals of Pipelines and Engineering Act
.
Findings
Congress finds that—
the American Society of Civil Engineers recently assessed the infrastructure system of the United States and gave the system an overall grade of D+;
recent critical infrastructure decisions have become unacceptably politicized;
permit applications for the Keystone XL Pipeline have been under review for over 51/2 years; and
Congress can alleviate political interference in critical infrastructure decisions by—
directly delegating to the Secretary of State the authority to expedite review of permits necessary to accelerate the completion of energy production and transmission projects; and
providing a systematic method for evaluating and permitting the constructing and maintenance of certain other border crossings for land transportation (including motor and rail vehicles) and other facilities.
Definition of Secretary
In this Act, the term Secretary means the Secretary of State.
Constitutional authority
In accordance with clause 3 of section 8 of article I of the Constitution (delegating to Congress the power to regulate commerce with foreign nations), Congress has the power to regulate the approval of infrastructure connecting the United States with a foreign country.
Delegation of authority to the Department of State
In general
The Secretary is designated and empowered to receive all applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States (other than applications received by the Secretary of Energy under laws in existence on the date of enactment of this Act), of—
facilities for the exportation or importation of petroleum, petroleum products, coal, or other fuels to or from a foreign country;
pipelines, conveyor belts, and similar facilities for the exportation or importation of products (other than the products described in paragraph (1)) to or from a foreign country;
facilities for the exportation or importation of water or sewage to or from a foreign country;
facilities for the transportation of persons, things, or both persons and things to or from a foreign country;
bridges, to the extent that congressional authorization is not otherwise required under law;
facilities similar to the facilities otherwise described in this subsection that are located above or below ground; and
border crossings for land transportation, including motor and rail vehicles, to or from a foreign country, whether or not in conjunction with the facilities described in paragraph (4).
Requests for information
In general
On receipt of a completed application under subsection (a), the Secretary shall—
request any additional information needed from the applicant, as appropriate; and
refer the application to other agencies pursuant to paragraph (2);
refer the application and pertinent information to, and request the views of—
the Secretary of Defense, the Attorney General, the Secretary of the Interior, the Secretary of Commerce, the Secretary of Transportation, the Secretary of Energy, the Secretary of Homeland Security, the Administrator of the Environmental Protection Agency (or the heads of successor agencies); and
for applications concerning the border with Mexico, the United States Commissioner of the International Boundary and Water Commission; and
refer the application and pertinent information to, and request the views of, such other Federal department and agency heads as the Secretary determines appropriate.
Additional consultations
The Secretary—
may consult with State, tribal, and local government officials and foreign governments, as the Secretary determines appropriate, with respect to an application under subsection (a); and
shall request responses in a timely manner, not to exceed 90 days from the date of the request.
Further consideration
On receiving the views and assistance requested under paragraphs (1) and (2), the Secretary shall consider, in light of any statutory or other requirements or other considerations, whether additional information is necessary to evaluate the application and, as appropriate, request the additional information from the applicant.
Public comment
The Secretary may provide for—
the publication in the Federal Register of notice of receipt of applications;
the receipt of public comments on applications; and
notices related to the issuance or denial of applications.
Compliance
In general
Subject to paragraph (2), a Federal agency consulted by the Secretary under subsection (b)(1) shall comply with the request of the Secretary (consistent with the authority of the Federal agency) as soon as practicable but not later than 90 days after the date on which the request is submitted.
Timing
If a Federal agency consulted by the Secretary under subsection (b)(1) requests from the Secretary additional information that is necessary to carry out the request, the compliance deadline under paragraph (1) shall not begin until the date on which the additional information is received.
National interest determination
In general
After consideration of the views, assistance, and public comment received under subsection (b), if the Secretary finds that issuance of a permit to the applicant would serve the national interest, the Secretary shall—
prepare a permit, in such form and with such terms and conditions as the national interest requires, as determined by the Secretary; and
notify the officials required to be consulted under subsection (b)(1)(B) of the proposed determination that a permit be issued.
Proposed denial
After consideration of the views, assistance, and public comment received under subsection (b), if the Secretary finds that issuance of a permit to the applicant would not serve the national interest, the Secretary shall notify the officials required to be consulted under subsection (b)(1)(B) of the proposed determination that the application be denied.
Issuance or denial
The Secretary shall issue or deny the permit in accordance with the proposed determination under subsection (d).
Regulations
The Secretary may promulgate such rules and regulations and prescribe such procedures (including rules, regulations, and procedures relating to the International Boundary and Water Commission) as the Secretary determines necessary to carry out this section.
Pending applications
Except as provided in section 6, this section shall apply only to applications for permits filed on or after the date of enactment of this Act.
Effect
Except as explicitly provided in this Act, nothing in this section limits the application of, or obligation to comply with, the requirements of any other Federal department or agency.
Final rule
The decision made by the Secretary under subsection (e) shall be deemed to be a rule for purposes
of chapter 8 of title 5, United States Code (commonly known as the Congressional Review Act
).
Keystone XL pipeline approval
In general
TransCanada Keystone Pipeline, L.P. may construct, connect, operate, and maintain the pipeline and cross-border facilities described in the application filed on May 4, 2012, by TransCanada Corporation to the Department of State (including any subsequent revision to the pipeline route within the State of Nebraska required or authorized by the State of Nebraska).
Environmental impact statement
The Final Supplemental Environmental Impact Statement issued by the Secretary of State in January 2014, regarding the pipeline referred to in subsection (a), and the environmental analysis, consultation, and review described in that document (including appendices) shall be considered to fully satisfy—
all requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and
any other provision of law that requires Federal agency consultation or review (including the consultation or review required under section 7(a) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a))) with respect to the pipeline and facilities referred to in subsection (a).
Permits
Any Federal permit or authorization issued before the date of enactment of this Act for the pipeline and cross-border facilities referred to in subsection (a) shall remain in effect.
Federal judicial review
Any legal challenge to a Federal agency action regarding the pipeline and cross-border facilities described in subsection (a), and the related facilities in the United States, that are approved by this Act, and any permit, right-of-way, or other action taken to construct or complete the project pursuant to Federal law, shall only be subject to judicial review on direct appeal to the United States Court of Appeals for the District of Columbia Circuit.
Private property savings clause
Nothing in this Act alters any Federal, State, or local process or condition in effect on the date of enactment of this Act that is necessary to secure access from an owner of private property to construct the pipeline and cross-border facilities described in subsection (a).
Review of certain Executive orders
The Comptroller General of the United States shall—
conduct a review of any Executive order issued by the President that is not based on the exclusive constitutional authority of the President; and
not later than 180 days after the date of enactment of this Act, submit to Congress a report on the results of the review.