UNSHACKLE Act

II 117TH CONGRESS 1ST SESSION S. 717 To amend the National Environmental Policy Act of 1969 to impose time limits on the completion of certain required actions under the Act, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Mr. LEE (for himself, Mr. CRAMER, and Mr. CRUZ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the National Environmental Policy Act of 1969 to impose time limits on the completion of certain re- quired actions under the Act, 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 ‘‘Undoing NEPA’s Sub- 4 stantial Harm by Advancing Concepts that Kickstart the 5 Liberation of the Economy Act’’ or the ‘‘UNSHACKLE 6 Act’’. 7 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 717 IS SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT MODI- 1 FICATIONS. 2 (a) APPLICABLE TIMELINES.—Title I of the National 3 Environmental Policy Act of 1969 is amended— 4 (1) by redesignating section 105 (42 U.S.C. 5 4335) as section 108; and 6 (2) by inserting after section 104 (42 U.S.C. 7 4334) the following: 8 ‘‘SEC. 105. PROCESS REQUIREMENTS. 9 ‘‘(a) DEFINITIONS.—In this section: 10 ‘‘(1) FEDERAL AGENCY.—The term ‘Federal 11 agency’ includes a State that has assumed the re- 12 sponsibility of a Federal agency under— 13 ‘‘(A) section 107; or 14 ‘‘(B) section 327 of title 23, United States 15 Code. 16 ‘‘(2) HEAD OF A FEDERAL AGENCY.—The term 17 ‘head of a Federal agency’ includes the governor or 18 head of an applicable State agency of a State that 19 has assumed the responsibility of a Federal agency 20 under— 21 ‘‘(A) section 107; or 22 ‘‘(B) section 327 of title 23, United States 23 Code. 24 ‘‘(b) APPLICABLE TIMELINES.— 25 ‘‘(1) NEPA PROCESS.— 26 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 717 IS ‘‘(A) IN GENERAL.—The head of a Federal 1 agency shall complete the NEPA process for a 2 proposed action of the Federal agency, as de- 3 scribed in section 109(3)(B)(ii), not later than 4 2 years after the date described in section 5 109(3)(B)(i). 6 ‘‘(B) ENVIRONMENTAL DOCUMENTS.— 7 Within the period described in subparagraph 8 (A), not later than 1 year after the date de- 9 scribed in section 109(3)(B)(i), the head of the 10 Federal agency shall, with respect to the pro- 11 posed action— 12 ‘‘(i) issue— 13 ‘‘(I) a finding that a categorical 14 exclusion applies to the proposed ac- 15 tion; or 16 ‘‘(II) a finding of no significant 17 impact; or 18 ‘‘(ii) publish a notice of intent to pre- 19 pare an environmental impact statement in 20 the Federal Register. 21 ‘‘(C) ENVIRONMENTAL IMPACT STATE- 22 MENT.—If the head of a Federal agency pub- 23 lishes a notice of intent described in subpara- 24 graph (B)(ii), within the period described in 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 717 IS subparagraph (A) and not later than 1 year 1 after the date on which the head of the Federal 2 agency publishes the notice of intent, the head 3 of the Federal agency shall complete the envi- 4 ronmental impact statement and, if necessary, 5 any supplemental environmental impact state- 6 ment for the proposed action. 7 ‘‘(D) PENALTIES.— 8 ‘‘(i) DEFINITIONS.—In this subpara- 9 graph: 10 ‘‘(I) DIRECTOR.—The term ‘Di- 11 rector’ means the Director of the Of- 12 fice of Management and Budget. 13 ‘‘(II) FEDERAL AGENCY.—The 14 term ‘Federal agency’ does not in- 15 clude a State. 16 ‘‘(III) FINAL NEPA COMPLIANCE 17 DATE.—The term ‘final NEPA com- 18 pliance date’, with respect to a pro- 19 posed action, means the date by which 20 the head of a Federal agency is re- 21 quired to complete the NEPA process 22 under subparagraph (A). 23 ‘‘(IV) HEAD OF A FEDERAL 24 AGENCY.—The term ‘head of a Fed- 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 717 IS eral agency’ does not include the gov- 1 ernor or head of a State agency of a 2 State. 3 ‘‘(V) INITIAL EIS COMPLIANCE 4 DATE.—The term ‘initial EIS compli- 5 ance date’, with respect to a proposed 6 action for which a Federal agency 7 published a notice of intent described 8 in subparagraph (B)(ii), means the 9 date by which an environmental im- 10 pact statement for that proposed ac- 11 tion is required to be completed under 12 subparagraph (C). 13 ‘‘(VI) INITIAL NEPA COMPLIANCE 14 DATE.—The term ‘initial NEPA com- 15 pliance date’, with respect to a pro- 16 posed action, means the date by which 17 the head of a Federal agency is re- 18 quired to issue or publish a document 19 described in subparagraph (B) for 20 that proposed action under that sub- 21 paragraph. 22 ‘‘(VII) INITIAL NONCOMPLIANCE 23 DETERMINATION.—The term ‘initial 24 noncompliance determination’ means 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 717 IS a determination under clause 1 (ii)(I)(bb) that the head of a Federal 2 agency has not complied with the re- 3 quirements of subparagraph (A), (B), 4 or (C). 5 ‘‘(ii) INITIAL NONCOMPLIANCE.— 6 ‘‘(I) DETERMINATION.— 7 ‘‘(aa) NOTIFICATION.—As 8 soon as practicable after the date 9 described in section 109(3)(B)(i) 10 for a proposed action of a Fed- 11 eral agency, the head of the Fed- 12 eral agency shall notify the Di- 13 rector that the head of the Fed- 14 eral agency is beginning the 15 NEPA process for that proposed 16 action. 17 ‘‘(bb) DETERMINATIONS OF 18 COMPLIANCE.— 19 ‘‘(AA) INITIAL DETER- 20 MINATION.—As soon as 21 practicable after the initial 22 NEPA compliance date for a 23 proposed action, the Direc- 24 tor shall determine whether, 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 717 IS as of the initial NEPA com- 1 pliance date, the head of the 2 Federal agency has complied 3 with subparagraph (B) for 4 that proposed action. 5 ‘‘(BB) ENVIRON- 6 MENTAL IMPACT STATE- 7 MENT.—With respect to a 8 proposed action of a Federal 9 agency in which the head of 10 the Federal agency publishes 11 a notice of intent described 12 in subparagraph (B)(ii), as 13 soon as practicable after the 14 initial EIS compliance date 15 for a proposed action, the 16 Director shall determine 17 whether, as of the initial 18 EIS compliance date, the 19 head of the Federal agency 20 has complied with subpara- 21 graph (C) for that proposed 22 action. 23 ‘‘(CC) COMPLETION OF 24 NEPA PROCESS.—As soon as 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 717 IS practicable after the final 1 NEPA compliance date for a 2 proposed action, the Direc- 3 tor shall determine whether, 4 as of the final NEPA com- 5 pliance date, the head of the 6 Federal agency has complied 7 with subparagraph (A) for 8 that proposed action. 9 ‘‘(II) IDENTIFICATION; PENALTY; 10 NOTIFICATION.—If the Director 11 makes an initial noncompliance deter- 12 mination for a proposed action— 13 ‘‘(aa) the Director shall 14 identify the account for the sala- 15 ries and expenses of the office of 16 the head of the Federal agency, 17 or an equivalent account; 18 ‘‘(bb) beginning on the day 19 after the date on which the Di- 20 rector makes the initial non- 21 compliance determination, the 22 amount that the head of the Fed- 23 eral agency may obligate from 24 the account identified under item 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 717 IS (aa) for the fiscal year during 1 which the determination is made 2 shall be reduced by 0.5 percent 3 from the amount initially made 4 available for the account for that 5 fiscal year; and 6 ‘‘(cc) the Director shall no- 7 tify the head of the Federal 8 agency of— 9 ‘‘(AA) the initial non- 10 compliance determination; 11 ‘‘(BB) the account 12 identified under item (aa); 13 and 14 ‘‘(CC) the reduction 15 under item (bb). 16 ‘‘(iii) CONTINUED NONCOMPLIANCE.— 17 ‘‘(I) DETERMINATION.—Every 18 90 days after the date of an initial 19 noncompliance determination, the Di- 20 rector shall determine whether the 21 head of the Federal agency has com- 22 plied with the applicable requirements 23 of subparagraphs (A) through (C) for 24 the proposed action, until the date on 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 717 IS which the Director determines that 1 the head of the Federal agency has 2 completed the NEPA process for the 3 proposed action. 4 ‘‘(II) PENALTY; NOTIFICATION.— 5 For each determination made by the 6 Director under subclause (I) that the 7 head of a Federal agency has not 8 complied with a requirement of sub- 9 paragraph (A), (B), or (C) for a pro- 10 posed action— 11 ‘‘(aa) the amount that the 12 head of the Federal agency may 13 obligate from the account identi- 14 fied under clause (ii)(II)(aa) for 15 the fiscal year during which the 16 most recent determination under 17 subclause (I) is made shall be re- 18 duced by 0.5 percent from the 19 amount initially made available 20 for the account for that fiscal 21 year; and 22 ‘‘(bb) the Director shall no- 23 tify the head of the Federal 24 agency of— 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 717 IS ‘‘(AA) the determina- 1 tion under subclause (I); 2 and 3 ‘‘(BB) the reduction 4 under item (aa). 5 ‘‘(iv) REQUIREMENTS.— 6 ‘‘(I) AMOUNTS NOT RESTORED.— 7 A reduction in the amount that the 8 head of a Federal agency may obligate 9 under clause (ii)(II)(bb) or 10 (iii)(II)(aa) during a fiscal year shall 11 not be restored for that fiscal year, 12 without regard to whether the head of 13 a Federal agency completes the 14 NEPA process for the proposed action 15 with respect to which the Director 16 made an initial noncompliance deter- 17 mination or a determination under 18 clause (iii)(I). 19 ‘‘(II) REQUIRED TIMELINES.— 20 The violation of subparagraph (B) or 21 (C), and any action carried out to re- 22 mediate or otherwise address the vio- 23 lation, shall not affect any other appli- 24 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 717 IS cable compliance date under subpara- 1 graph (A), (B), or (C). 2 ‘‘(E) UNEXPECTED CIRCUMSTANCES.—If, 3 while carrying out a proposed action after the 4 completion of the NEPA process for that pro- 5 posed action, a Federal agency or project spon- 6 sor encounters a new or unexpected cir- 7 cumstance or condition that may require the re- 8 evaluation of the proposed action under this 9 title, the head of the Federal agency with re- 10 sponsibility for carrying out the NEPA process 11 for the proposed action shall— 12 ‘‘(i) consider whether mitigating the 13 new or unexpected circumstance or condi- 14 tion is sufficient to avoid significant effects 15 that may result from the circumstance or 16 condition; and 17 ‘‘(ii) if the head of the Federal agency 18 determines under clause (i) that the sig- 19 nificant effects that result from the cir- 20 cumstance or condition can be avoided, 21 mitigate the circumstance or condition 22 without carrying out the NEPA process 23 again. 24 ‘‘(2) AUTHORIZATIONS AND PERMITS.— 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 717 IS ‘‘(A) IN GENERAL.—Not later than 90 1 days after the date described in section 2 109(3)(B)(ii), the head of a Federal agency 3 shall issue— 4 ‘‘(i) any necessary permit or author- 5 ization to carry out the proposed action; or 6 ‘‘(ii) a denial of the permit or author- 7 ization necessary to carry out the proposed 8 action. 9 ‘‘(B) EFFECT OF FAILURE TO ISSUE AU- 10 THORIZATION OR PERMIT.—If a permit or au- 11 thorization described in subparagraph (A) is 12 not issued or denied within the period described 13 in that subparagraph, the permit or authoriza- 14 tion shall be considered to be approved. 15 ‘‘(C) DENIAL OF PERMIT OR AUTHORIZA- 16 TION.— 17 ‘‘(i) IN GENERAL.—If a permit or au- 18 thorization described in subparagraph (A) 19 is denied, the head of the Federal agency 20 shall describe to the project sponsor— 21 ‘‘(I) the basis of the denial; and 22 ‘‘(II) recommendations for the 23 project sponsor with respect to how to 24 address the reasons for the denial. 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 717 IS ‘‘(ii) RECOMMENDED CHANGES.—If 1 the project sponsor carries out the rec- 2 ommendations of the head of the Federal 3 agency under clause (i)(II) and notifies the 4 head of the Federal agency that the rec- 5 ommendations have been carried out, the 6 head of the Federal agency— 7 ‘‘(I) shall decide whether to issue 8 the permit or authorization described 9 in subparagraph (A) not later than 90 10 days after date on which the project 11 sponsor submitted the notification; 12 and 13 ‘‘(II) shall not carry out the 14 NEPA process with respect to the 15 proposed action again.’’. 16 (b) AGENCY PROCESS REFORMS.—Section 105 of the 17 National Environmental Policy Act of 1969 (42 U.S.C. 18 4321 et seq.) (as added by subsection (a)(2)) is amended 19 by adding at the end the following: 20 ‘‘(c) PROHIBITIONS.—In carrying out the NEPA 21 process, the head of a Federal agency may not— 22 ‘‘(1) consider whether a proposed action or an 23 alternative to the proposed action considered by the 24 head of the Federal agency, including the design, en- 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S717.IS S717 pamtmann on DSKBC07HB2PROD with BILLS 15 •S 717 IS vironmental impact, mitigation measures, or adapta- 1 tion measures of the proposed action or alternative 2 to t [Text truncated for display. Full text available on Congress.gov.]