NEPA Legal Reform Act

II 117TH CONGRESS 1ST SESSION S. 716 To amend the National Environmental Policy Act of 1969 to provide for legal reform, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 11, 2021 Mr. LEE 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 provide for legal reform, 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 ‘‘NEPA Legal Reform 4 Act’’. 5 SEC. 2. LEGAL REFORMS UNDER NEPA. 6 (a) IN GENERAL.—Title I of the National Environ- 7 mental Policy Act of 1969 is amended— 8 (1) by redesignating section 105 (42 U.S.C. 9 4335) as section 106; and 10 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 716 IS (2) by inserting after section 104 (42 U.S.C. 1 4334) the following: 2 ‘‘SEC. 105. LEGAL REFORM. 3 ‘‘(a) DEFINITIONS.—In this section: 4 ‘‘(1) FEDERAL AGENCY.—The term ‘Federal 5 agency’ includes a State that has assumed responsi- 6 bility under section 327 of title 23, United States 7 Code. 8 ‘‘(2) HEAD OF A FEDERAL AGENCY.—The term 9 ‘head of a Federal agency’ includes the governor or 10 head of an applicable State agency of a State that 11 has assumed responsibility under section 327 of title 12 23, United States Code. 13 ‘‘(3) NEPA PROCESS.— 14 ‘‘(A) IN GENERAL.—The term ‘NEPA 15 process’ means the entirety of every process, 16 analysis, or other measure, including an envi- 17 ronmental impact statement, required to be car- 18 ried out by a Federal agency under this title be- 19 fore the agency undertakes a proposed action. 20 ‘‘(B) PERIOD.—For purposes of subpara- 21 graph (A), the NEPA process— 22 ‘‘(i) begins on the date on which the 23 head of a Federal agency receives an appli- 24 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 716 IS cation for a proposed action from a project 1 sponsor; and 2 ‘‘(ii) ends on the date on which the 3 Federal agency issues, with respect to the 4 proposed action— 5 ‘‘(I) a record of decision, includ- 6 ing, if necessary, a revised record of 7 decision; 8 ‘‘(II) a finding of no significant 9 impact; or 10 ‘‘(III) a categorical exclusion 11 under this title. 12 ‘‘(4) PROJECT SPONSOR.—The term ‘project 13 sponsor’ means a Federal agency or other entity, in- 14 cluding a private or public-private entity, that seeks 15 approval of a proposed action. 16 ‘‘(b) JUDICIAL REVIEW.— 17 ‘‘(1) STANDING.—Notwithstanding any other 18 provision of law, a plaintiff may only bring a claim 19 arising under Federal law seeking judicial review of 20 a portion of the NEPA process if the plaintiff pleads 21 facts that allege that the plaintiff has personally suf- 22 fered, or will likely personally suffer, a direct, tan- 23 gible harm as a result of the portion of the NEPA 24 process for which the plaintiff is seeking review. 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 716 IS ‘‘(2) STATUTE OF LIMITATIONS.— 1 ‘‘(A) IN GENERAL.—Notwithstanding any 2 other provision of law and except as provided in 3 subparagraph (B)(ii), a claim arising under 4 Federal law seeking judicial review of any por- 5 tion of the NEPA process shall be barred un- 6 less it is filed not later than the earlier of— 7 ‘‘(i) 150 days after the final agency 8 action under the NEPA process has been 9 taken; and 10 ‘‘(ii) if applicable, an earlier date after 11 which judicial review is barred that is spec- 12 ified in the Federal law pursuant to which 13 the judicial review is allowed. 14 ‘‘(B) NEW INFORMATION.— 15 ‘‘(i) CONSIDERATION.—A Federal 16 agency shall consider for the purpose of a 17 supplemental environmental impact state- 18 ment new information received after the 19 close of a comment period if the informa- 20 tion satisfies the requirements for a sup- 21 plemental environmental impact statement 22 under the regulations of the Federal agen- 23 cy. 24 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 716 IS ‘‘(ii) STATUTE OF LIMITATIONS 1 BASED ON NEW INFORMATION.—If a sup- 2 plemental environmental impact statement 3 is required under the regulations of a Fed- 4 eral agency, a claim for judicial review of 5 the supplemental environmental impact 6 statement shall be barred unless it is filed 7 not later than the earlier of— 8 ‘‘(I) 150 days after the publica- 9 tion of a notice in the Federal Reg- 10 ister that the supplemental environ- 11 mental impact statement is final; and 12 ‘‘(II) if applicable, an earlier date 13 after which judicial review is barred 14 that is specified in the Federal law 15 pursuant to which the judicial review 16 is allowed. 17 ‘‘(C) SAVINGS CLAUSE.—Nothing in this 18 paragraph creates a right to judicial review. 19 ‘‘(3) REMEDIES.— 20 ‘‘(A) PRELIMINARY INJUNCTIONS AND 21 TEMPORARY RESTRAINING ORDERS.— 22 ‘‘(i) IN GENERAL.—Subject to clause 23 (ii), in a motion for a temporary restrain- 24 ing order or preliminary injunction against 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 716 IS a Federal agency or project sponsor in a 1 claim arising under Federal law seeking ju- 2 dicial review of any portion of the NEPA 3 process, the plaintiff shall establish by 4 clear and convincing evidence that— 5 ‘‘(I) the plaintiff is likely to suc- 6 ceed on the merits; 7 ‘‘(II) the plaintiff is likely to suf- 8 fer irreparable harm in the absence of 9 the temporary restraining order or 10 preliminary injunction, as applicable; 11 ‘‘(III) the balance of equities is 12 tipped in the favor of the plaintiff; 13 and 14 ‘‘(IV) the temporary restraining 15 order or preliminary injunction is in 16 the public interest. 17 ‘‘(ii) ADDITIONAL REQUIREMENTS.— 18 A court may not grant a motion described 19 in clause (i) unless the court— 20 ‘‘(I) makes a finding of extraor- 21 dinary circumstances that warrant the 22 granting of the motion; 23 ‘‘(II) considers the potential ef- 24 fects on public health, safety, and the 25 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 716 IS environment, and the potential for sig- 1 nificant negative effects on jobs re- 2 sulting from granting the motion; and 3 ‘‘(III) notwithstanding any other 4 provision of law, applies the require- 5 ments of Rule 65(c) of the Federal 6 Rules of Civil Procedure. 7 ‘‘(B) PERMANENT INJUNCTIONS.— 8 ‘‘(i) IN GENERAL.—Subject to clause 9 (ii), in a motion for a permanent injunc- 10 tion against a Federal agency or project 11 sponsor a claim arising under Federal law 12 seeking judicial review of any portion of 13 the NEPA process, the plaintiff shall es- 14 tablish by clear and convincing evidence 15 that— 16 ‘‘(I) the plaintiff has suffered an 17 irreparable injury; 18 ‘‘(II) remedies available at law, 19 including monetary damages, are in- 20 adequate to compensate for the in- 21 jury; 22 ‘‘(III) considering the balance of 23 hardship between the plaintiff and de- 24 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 716 IS fendant, a remedy in equity is war- 1 ranted; 2 ‘‘(IV) the public interest is not 3 disserved by a permanent injunction; 4 and 5 ‘‘(V) if the error or omission of a 6 Federal agency in a statement re- 7 quired under this title is the grounds 8 for which the plaintiff is seeking judi- 9 cial review, the error or omission is 10 likely to result in specific, irreparable 11 damage to the environment. 12 ‘‘(ii) ADDITIONAL SHOWING.—A court 13 may not grant a motion described in clause 14 (i) unless— 15 ‘‘(I) the court makes a finding 16 that extraordinary circumstances exist 17 that warrant the granting of the mo- 18 tion; and 19 ‘‘(II) the permanent injunction 20 is— 21 ‘‘(aa) as narrowly tailored as 22 possible to correct the injury; and 23 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 716 IS ‘‘(bb) the least intrusive 1 means necessary to correct the 2 injury.’’. 3 (b) ATTORNEY FEES IN ENVIRONMENTAL LITIGA- 4 TION.— 5 (1) ADMINISTRATIVE PROCEDURE.—Section 6 504(b)(1) of title 5, United States Code, is amend- 7 ed— 8 (A) in subparagraph (E), by striking 9 ‘‘and’’ at the end; 10 (B) in subparagraph (F), by striking the 11 period at the end and inserting ‘‘; and’’; and 12 (C) by adding at the end the following: 13 ‘‘(G) ‘special factor’ does not include knowl- 14 edge, expertise, or skill in environmental litigation.’’. 15 (2) UNITED STATES AS PARTY.—Section 16 2412(d)(2) of title 28, United States Code, is 17 amended— 18 (A) in subparagraph (H), by striking 19 ‘‘and’’ at the end; 20 (B) in subparagraph (I), by striking the 21 period at the end and inserting ‘‘; and’’; and 22 (C) by adding at the end the following: 23 VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 716 IS ‘‘(J) ‘special factor’ does not include 1 knowledge, expertise, or skill in environmental 2 litigation.’’. 3 Æ VerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S716.IS S716 pamtmann on DSKBC07HB2PROD with BILLS