NEPA Legal Reform Act

I 117TH CONGRESS 1ST SESSION H. R. 3813 To amend the National Environmental Policy Act of 1969 to provide for legal reform, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 11, 2021 Ms. CHENEY introduced the following bill; which was referred to the Com- mittee on Natural Resources, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdic- tion of the committee concerned 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 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 2 •HR 3813 IH (1) by redesignating section 105 (42 U.S.C. 1 4335) as section 106; and 2 (2) by inserting after section 104 (42 U.S.C. 3 4334) the following: 4 ‘‘SEC. 105. LEGAL REFORM. 5 ‘‘(a) DEFINITIONS.—In this section: 6 ‘‘(1) FEDERAL AGENCY.—The term ‘Federal 7 agency’ includes a State that has assumed responsi- 8 bility under section 327 of title 23, United States 9 Code. 10 ‘‘(2) HEAD OF A FEDERAL AGENCY.—The term 11 ‘head of a Federal agency’ includes the governor or 12 head of an applicable State agency of a State that 13 has assumed responsibility under section 327 of title 14 23, United States Code. 15 ‘‘(3) NEPA PROCESS.— 16 ‘‘(A) IN GENERAL.—The term ‘NEPA 17 process’ means the entirety of every process, 18 analysis, or other measure, including an envi- 19 ronmental impact statement, required to be car- 20 ried out by a Federal agency under this title be- 21 fore the agency undertakes a proposed action. 22 ‘‘(B) PERIOD.—For purposes of subpara- 23 graph (A), the NEPA process— 24 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 3 •HR 3813 IH ‘‘(i) begins on the date on which the 1 head of a Federal agency receives an appli- 2 cation for a proposed action from a project 3 sponsor; and 4 ‘‘(ii) ends on the date on which the 5 Federal agency issues, with respect to the 6 proposed action— 7 ‘‘(I) a record of decision, includ- 8 ing, if necessary, a revised record of 9 decision; 10 ‘‘(II) a finding of no significant 11 impact; or 12 ‘‘(III) a categorical exclusion 13 under this title. 14 ‘‘(4) PROJECT SPONSOR.—The term ‘project 15 sponsor’ means a Federal agency or other entity, in- 16 cluding a private or public-private entity, that seeks 17 approval of a proposed action. 18 ‘‘(b) JUDICIAL REVIEW.— 19 ‘‘(1) STANDING.—Notwithstanding any other 20 provision of law, a plaintiff may only bring a claim 21 arising under Federal law seeking judicial review of 22 a portion of the NEPA process if the plaintiff pleads 23 facts that allege that the plaintiff has personally suf- 24 fered, or will likely personally suffer, a direct, tan- 25 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 4 •HR 3813 IH gible harm as a result of the portion of the NEPA 1 process for which the plaintiff is seeking review. 2 ‘‘(2) STATUTE OF LIMITATIONS.— 3 ‘‘(A) IN GENERAL.—Notwithstanding any 4 other provision of law and except as provided in 5 subparagraph (B)(ii), a claim arising under 6 Federal law seeking judicial review of any por- 7 tion of the NEPA process shall be barred un- 8 less it is filed not later than the earlier of— 9 ‘‘(i) 150 days after the final agency 10 action under the NEPA process has been 11 taken; and 12 ‘‘(ii) if applicable, an earlier date after 13 which judicial review is barred that is spec- 14 ified in the Federal law pursuant to which 15 the judicial review is allowed. 16 ‘‘(B) NEW INFORMATION.— 17 ‘‘(i) CONSIDERATION.—A Federal 18 agency shall consider for the purpose of a 19 supplemental environmental impact state- 20 ment new information received after the 21 close of a comment period if the informa- 22 tion satisfies the requirements for a sup- 23 plemental environmental impact statement 24 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 5 •HR 3813 IH under the regulations of the Federal agen- 1 cy. 2 ‘‘(ii) STATUTE OF LIMITATIONS 3 BASED ON NEW INFORMATION.—If a sup- 4 plemental environmental impact statement 5 is required under the regulations of a Fed- 6 eral agency, a claim for judicial review of 7 the supplemental environmental impact 8 statement shall be barred unless it is filed 9 not later than the earlier of— 10 ‘‘(I) 150 days after the publica- 11 tion of a notice in the Federal Reg- 12 ister that the supplemental environ- 13 mental impact statement is final; and 14 ‘‘(II) if applicable, an earlier date 15 after which judicial review is barred 16 that is specified in the Federal law 17 pursuant to which the judicial review 18 is allowed. 19 ‘‘(C) SAVINGS CLAUSE.—Nothing in this 20 paragraph creates a right to judicial review. 21 ‘‘(3) REMEDIES.— 22 ‘‘(A) PRELIMINARY INJUNCTIONS AND 23 TEMPORARY RESTRAINING ORDERS.— 24 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 6 •HR 3813 IH ‘‘(i) IN GENERAL.—Subject to clause 1 (ii), in a motion for a temporary restrain- 2 ing order or preliminary injunction against 3 a Federal agency or project sponsor in a 4 claim arising under Federal law seeking ju- 5 dicial review of any portion of the NEPA 6 process, the plaintiff shall establish by 7 clear and convincing evidence that— 8 ‘‘(I) the plaintiff is likely to suc- 9 ceed on the merits; 10 ‘‘(II) the plaintiff is likely to suf- 11 fer irreparable harm in the absence of 12 the temporary restraining order or 13 preliminary injunction, as applicable; 14 ‘‘(III) the balance of equities is 15 tipped in the favor of the plaintiff; 16 and 17 ‘‘(IV) the temporary restraining 18 order or preliminary injunction is in 19 the public interest. 20 ‘‘(ii) ADDITIONAL REQUIREMENTS.— 21 A court may not grant a motion described 22 in clause (i) unless the court— 23 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 7 •HR 3813 IH ‘‘(I) makes a finding of extraor- 1 dinary circumstances that warrant the 2 granting of the motion; 3 ‘‘(II) considers the potential ef- 4 fects on public health, safety, and the 5 environment, and the potential for sig- 6 nificant negative effects on jobs re- 7 sulting from granting the motion; and 8 ‘‘(III) notwithstanding any other 9 provision of law, applies the require- 10 ments of Rule 65(c) of the Federal 11 Rules of Civil Procedure. 12 ‘‘(B) PERMANENT INJUNCTIONS.— 13 ‘‘(i) IN GENERAL.—Subject to clause 14 (ii), in a motion for a permanent injunc- 15 tion against a Federal agency or project 16 sponsor a claim arising under Federal law 17 seeking judicial review of any portion of 18 the NEPA process, the plaintiff shall es- 19 tablish by clear and convincing evidence 20 that— 21 ‘‘(I) the plaintiff has suffered an 22 irreparable injury; 23 ‘‘(II) remedies available at law, 24 including monetary damages, are in- 25 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 8 •HR 3813 IH adequate to compensate for the in- 1 jury; 2 ‘‘(III) considering the balance of 3 hardship between the plaintiff and de- 4 fendant, a remedy in equity is war- 5 ranted; 6 ‘‘(IV) the public interest is not 7 disserved by a permanent injunction; 8 and 9 ‘‘(V) if the error or omission of a 10 Federal agency in a statement re- 11 quired under this title is the grounds 12 for which the plaintiff is seeking judi- 13 cial review, the error or omission is 14 likely to result in specific, irreparable 15 damage to the environment. 16 ‘‘(ii) ADDITIONAL SHOWING.—A court 17 may not grant a motion described in clause 18 (i) unless— 19 ‘‘(I) the court makes a finding 20 that extraordinary circumstances exist 21 that warrant the granting of the mo- 22 tion; and 23 ‘‘(II) the permanent injunction 24 is— 25 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 9 •HR 3813 IH ‘‘(aa) as narrowly tailored as 1 possible to correct the injury; and 2 ‘‘(bb) the least intrusive 3 means necessary to correct the 4 injury.’’. 5 (b) ATTORNEY FEES IN ENVIRONMENTAL LITIGA- 6 TION.— 7 (1) ADMINISTRATIVE PROCEDURE.—Section 8 504(b)(1) of title 5, United States Code, is amend- 9 ed— 10 (A) in subparagraph (E), by striking 11 ‘‘and’’ at the end; 12 (B) in subparagraph (F), by striking the 13 period at the end and inserting ‘‘; and’’; and 14 (C) by adding at the end the following: 15 ‘‘(G) ‘special factor’ does not include knowl- 16 edge, expertise, or skill in environmental litigation.’’. 17 (2) UNITED STATES AS PARTY.—Section 18 2412(d)(2) of title 28, United States Code, is 19 amended— 20 (A) in subparagraph (H), by striking 21 ‘‘and’’ at the end; 22 (B) in subparagraph (I), by striking the 23 period at the end and inserting ‘‘; and’’; and 24 (C) by adding at the end the following: 25 VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS 10 •HR 3813 IH ‘‘(J) ‘special factor’ does not include 1 knowledge, expertise, or skill in environmental 2 litigation.’’. 3 Æ VerDate Sep 11 2014 17:23 Jun 29, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H3813.IH H3813 lotter on DSK11XQN23PROD with BILLS