Federal Permitting Modernization Act of 2021

II 117TH CONGRESS 1ST SESSION S. 362 To amend the FAST Act to improve the Federal permitting process, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 23, 2021 Mr. CRUZ (for himself and Mr. COTTON) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the FAST Act to improve the Federal permitting process, and for other purposes. 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. 3 This Act may be cited as the ‘‘Federal Permitting 4 Modernization Act of 2021’’. 5 SEC. 2. FEDERAL PERMITTING MODERNIZATION. 6 (a) PERMITTING PROCESS IMPROVEMENT.—Section 7 41003 of the FAST Act (42 U.S.C. 4370m–2) is amend- 8 ed— 9 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 2 •S 362 IS (1) in subsection (b)(4)(A), by striking ‘‘or (C)’’ 1 and inserting ‘‘or (D)’’; and 2 (2) in subsection (c)(2)— 3 (A) in subparagraph (A), by striking ‘‘sub- 4 paragraph (C)’’ and inserting ‘‘subparagraph 5 (D)’’; 6 (B) by redesignating subparagraphs (B) 7 through (G) as subparagraphs (C) through (H), 8 respectively; 9 (C) by inserting after subparagraph (A) 10 the following: 11 ‘‘(B) NOTICE OF INTENT AND SCOPING.— 12 ‘‘(i) IN GENERAL.—The permitting 13 timetable under subparagraph (A) shall re- 14 quire that not later than 5 business days 15 after the Coordinated Project Plan is re- 16 quired to be established under paragraph 17 (1)(A), the lead agency shall publish in the 18 Federal Register a notice of intent to pre- 19 pare the relevant environmental document 20 required by NEPA. 21 ‘‘(ii) ENVIRONMENTAL IMPACT STATE- 22 MENTS.—If the relevant environmental 23 document required by NEPA is an envi- 24 ronmental impact statement, the notice of 25 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 3 •S 362 IS intent required under clause (i) and the 1 permitting timetable under subparagraph 2 (A) shall provide for a public scoping pe- 3 riod of not longer than 60 days, which 4 shall begin not later than 30 days after the 5 date on which the notice of intent is pub- 6 lished.’’; 7 (D) in clause (i)(III) of subparagraph (E) 8 (as so redesignated), by striking ‘‘subparagraph 9 (B)’’ and inserting ‘‘subparagraph (C)’’; 10 (E) in clause (i) of subparagraph (G) (as 11 so redesignated), by striking ‘‘subparagraph 12 (D)’’ and inserting ‘‘subparagraph (E)’’; and 13 (F) in clause (iii) of subparagraph (H) (as 14 so redesignated), by striking ‘‘subparagraph 15 (F)’’ and inserting ‘‘subparagraph (G)’’. 16 (b) COORDINATION OF REQUIRED REVIEWS.—Sec- 17 tion 41005 of the FAST Act (42 U.S.C. 4370m–4) is 18 amended— 19 (1) by redesignating subsection (f) as sub- 20 section (g); and 21 (2) by inserting after subsection (e) the fol- 22 lowing: 23 ‘‘(f) FINAL ENVIRONMENTAL IMPACT STATEMENT.— 24 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 4 •S 362 IS ‘‘(1) INCORPORATION OF COMMENTS AND PUB- 1 LICATION OF FINAL ENVIRONMENTAL IMPACT 2 STATEMENT.—Subject to paragraph (2)(C), not 3 later than 30 days after the date on which the public 4 comment period for a draft environmental impact 5 statement under subsection (d)(1) ends, the lead 6 agency shall— 7 ‘‘(A) incorporate any necessary changes; 8 and 9 ‘‘(B) approve, adopt, and publish the final 10 environmental impact statement. 11 ‘‘(2) PREPARATION BY PROJECT SPONSOR.— 12 ‘‘(A) IN GENERAL.—Notwithstanding any 13 other provision of law, an environmental impact 14 statement for a covered project shall not be 15 considered legally insufficient solely because the 16 draft environmental impact statement was pre- 17 pared by, or under the supervision of, the 18 project sponsor, if the lead agency— 19 ‘‘(i) furnishes guidance and partici- 20 pates in the preparation of the environ- 21 mental impact statement; 22 ‘‘(ii) independently evaluates the envi- 23 ronmental impact statement; and 24 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 5 •S 362 IS ‘‘(iii) approves and adopts the envi- 1 ronmental impact statement. 2 ‘‘(B) APPROVAL AND ADOPTION OF DRAFT 3 STATEMENT.—If the lead agency approves and 4 adopts a draft environmental impact statement 5 described in subparagraph (A), the lead agency 6 shall publish the draft environmental impact 7 statement for public comment not later than 30 8 days after the date on which the lead agency re- 9 ceives the draft environmental impact state- 10 ment. 11 ‘‘(C) RESUBMISSION.—If the lead agency 12 determines that a draft environmental impact 13 statement described in subparagraph (A) is le- 14 gally insufficient or deficient in a respect that 15 could affect the decision of a lead agency or a 16 cooperating agency, the lead agency shall, not 17 later than 30 days after the date on which the 18 agency receives the draft environmental impact 19 statement— 20 ‘‘(i) indicate all deficiencies in the 21 draft environmental impact statement to 22 the project sponsor for remediation; and 23 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 6 •S 362 IS ‘‘(ii) allow the project sponsor to re- 1 submit the draft detailed statement in ac- 2 cordance with subparagraph (B). 3 ‘‘(D) SAVINGS PROVISION.—The proce- 4 dures under this paragraph shall not relieve any 5 agency of— 6 ‘‘(i) any responsibilities for the scope, 7 objectivity, and content of an environ- 8 mental impact statement; or 9 ‘‘(ii) any other responsibility under 10 NEPA.’’. 11 (c) PRELIMINARY INJUNCTIVE RELIEF IN NEPA AC- 12 TIONS.—Section 41007 of the FAST Act (42 U.S.C. 13 4370m–6) is amended— 14 (1) by redesignating subsections (c) through (e) 15 as subsections (d) through (f), respectively; 16 (2) in subsection (b), in the matter preceding 17 paragraph (1), by striking ‘‘In addition’’ and insert- 18 ing ‘‘Subject to subsection (c), in addition’’; and 19 (3) by inserting after subsection (b) the fol- 20 lowing: 21 ‘‘(c) PRELIMINARY INJUNCTIVE RELIEF IN NEPA 22 ACTIONS.—In the case of an action pertaining to an envi- 23 ronmental review conducted under NEPA, a court shall 24 not issue a temporary restraining order or preliminary in- 25 VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS 7 •S 362 IS junction against an agency or a project sponsor in connec- 1 tion with the review or authorization of a covered project 2 unless the court, in the discretion of the court, determines 3 that— 4 ‘‘(1) the environmental review has failed sub- 5 stantially and materially to comply with the require- 6 ments of NEPA; and 7 ‘‘(2) the failure described in paragraph (1) can- 8 not be cured by supplementing the environmental 9 document or other mitigation and monitoring meas- 10 ures.’’. 11 Æ VerDate Sep 11 2014 02:47 Mar 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S362.IS S362 kjohnson on DSK79L0C42PROD with BILLS