NEPA Agency Process Accountability Act of 2020

II 116TH CONGRESS 2D SESSION S. 4590 To amend the National Environmental Policy Act of 1969 to reform agency process requirements, and for other purposes. IN THE SENATE OF THE UNITED STATES SEPTEMBER 16, 2020 Mr. LEE (for himself, Mr. CRUZ, and Mr. BARRASSO) 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 reform agency process requirements, 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 Agency Process 4 Accountability Act of 2020’’. 5 SEC. 2. AGENCY PROCESS REFORMS UNDER NEPA. 6 Title I of the National Environmental Policy Act of 7 1969 is amended— 8 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4590 IS (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. AGENCY PROCESS REFORMS. 5 ‘‘(a) DEFINITIONS.—In this section: 6 ‘‘(1) ENVIRONMENTAL ASSESSMENT.—The 7 term ‘environmental assessment’ has the meaning 8 given the term in section 1508.9 of title 40, Code of 9 Federal Regulations (or a successor regulation). 10 ‘‘(2) ENVIRONMENTAL IMPACT STATEMENT.— 11 The term ‘environmental impact statement’ means a 12 detailed statement required under section 102(2)(C). 13 ‘‘(3) FEDERAL AGENCY.—The term ‘Federal 14 agency’ includes a State that has assumed responsi- 15 bility under section 327 of title 23, United States 16 Code. 17 ‘‘(4) HEAD OF A FEDERAL AGENCY.—The term 18 ‘head of a Federal agency’ includes the governor or 19 head of an applicable State agency of a State that 20 has assumed responsibility under section 327 of title 21 23, United States Code. 22 ‘‘(5) NEPA PROCESS.— 23 ‘‘(A) IN GENERAL.—The term ‘NEPA 24 process’ means the entirety of every process, 25 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4590 IS analysis, or other measure, including an envi- 1 ronmental impact statement, required to be car- 2 ried out by a Federal agency under this title be- 3 fore the agency undertakes a proposed action. 4 ‘‘(B) PERIOD.—For purposes of subpara- 5 graph (A), the NEPA process— 6 ‘‘(i) begins on the date on which the 7 head of a Federal agency receives an appli- 8 cation for a proposed action from a project 9 sponsor; and 10 ‘‘(ii) ends on the date on which the 11 Federal agency issues, with respect to the 12 proposed action— 13 ‘‘(I) a record of decision, includ- 14 ing, if necessary, a revised record of 15 decision; 16 ‘‘(II) a finding of no significant 17 impact; or 18 ‘‘(III) a categorical exclusion 19 under this title. 20 ‘‘(6) PROJECT SPONSOR.—The term ‘project 21 sponsor’ means a Federal agency or other entity, in- 22 cluding a private or public-private entity, that seeks 23 approval of a proposed action. 24 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4590 IS ‘‘(b) PROHIBITIONS.—In carrying out the NEPA 1 process, the head of a Federal agency may not— 2 ‘‘(1) consider an alternative to the proposed ac- 3 tion if the proposed action is not technically or eco- 4 nomically feasible to the project sponsor; or 5 ‘‘(2) consider an alternative to the proposed ac- 6 tion that is not within the jurisdiction of the Federal 7 agency. 8 ‘‘(c) ENVIRONMENTAL DOCUMENTS.— 9 ‘‘(1) EIS REQUIRED.—In carrying out the 10 NEPA process for a proposed action that requires 11 the preparation of an environmental impact state- 12 ment, the head of a Federal agency shall produce for 13 the proposed action not more than 1— 14 ‘‘(A) environmental impact statement; 15 ‘‘(B) if necessary, environmental assess- 16 ment; and 17 ‘‘(C) record of decision. 18 ‘‘(2) EIS NOT REQUIRED.—In carrying out the 19 NEPA process for a proposed action that does not 20 require the preparation of an environmental impact 21 statement, the head of a Federal agency shall 22 produce for the proposed action not more than 1— 23 ‘‘(A) environmental assessment; or 24 ‘‘(B) finding of no significant impact. 25 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4590 IS ‘‘(d) CATEGORICAL EXCLUSIONS.— 1 ‘‘(1) IN GENERAL.—Notwithstanding any other 2 provision of law and subject to paragraph (2), the 3 head of a Federal agency may, without further ap- 4 proval, use a categorical exclusion under this title 5 that has been approved by— 6 ‘‘(A)(i) another Federal agency; and 7 ‘‘(ii) the Council on Environmental Qual- 8 ity; or 9 ‘‘(B) an Act of Congress. 10 ‘‘(2) REQUIREMENTS.—The head of a Federal 11 agency may use a categorical exclusion described in 12 paragraph (1) if the head of the Federal agency— 13 ‘‘(A) carefully reviews the description of 14 the proposed action to ensure that it fits within 15 the category of actions described in the categor- 16 ical exclusion; and 17 ‘‘(B) considers the circumstances associ- 18 ated with the proposed action to ensure that 19 there are no extraordinary circumstances that 20 warrant the preparation of an environmental 21 assessment or an environmental impact state- 22 ment. 23 ‘‘(3) EXTRAORDINARY CIRCUMSTANCES.—If the 24 head of a Federal agency determines that extraor- 25 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4590 IS dinary circumstances are present with respect to a 1 proposed action, the head of the Federal agency 2 shall— 3 ‘‘(A) consider whether mitigating cir- 4 cumstances or other conditions are sufficient to 5 avoid significant effects of the proposed action; 6 and 7 ‘‘(B) if the head of the Federal agency de- 8 termines that those significant effects can be 9 avoided, apply a categorical exclusion to the 10 proposed action. 11 ‘‘(e) REUSE OF WORK; DOCUMENTS PREPARED BY 12 QUALIFIED 3RD PARTIES; UNEXPECTED CIR- 13 CUMSTANCES.— 14 ‘‘(1) IN GENERAL.—In carrying out the NEPA 15 process for a proposed action— 16 ‘‘(A) subject to paragraph (2), the head of 17 a Federal agency shall— 18 ‘‘(i) use any applicable findings and 19 research from a prior NEPA process of 20 any Federal agency; and 21 ‘‘(ii) incorporate the findings and re- 22 search described in clause (i) into any ap- 23 plicable analysis under the NEPA process; 24 and 25 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4590 IS ‘‘(B) a Federal agency may adopt as an 1 environmental impact statement, environmental 2 assessment, or other environmental document 3 to achieve compliance with this title— 4 ‘‘(i) an environmental document pre- 5 pared under the law of the applicable State 6 if the head of the Federal agency deter- 7 mines that the environmental laws of the 8 applicable State— 9 ‘‘(I) provide the same level of en- 10 vironmental analysis as the analysis 11 required under this title; and 12 ‘‘(II) allow for the opportunity of 13 public comment; or 14 ‘‘(ii) subject to paragraph (3), an en- 15 vironmental document prepared by a quali- 16 fied third party chosen by the project spon- 17 sor, at the expense of the project sponsor, 18 if the head of the Federal agency— 19 ‘‘(I) provides oversight of the 20 preparation of the environmental doc- 21 ument by the third party; and 22 ‘‘(II) independently evaluates the 23 environmental document for the com- 24 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4590 IS pliance of the environmental document 1 with this title. 2 ‘‘(2) REQUIREMENT FOR THE REUSE OF FIND- 3 INGS AND RESEARCH.—The head of a Federal agen- 4 cy may reuse the applicable findings and research 5 described in paragraph (1)(A) if— 6 ‘‘(A)(i) the project for which the head of 7 the Federal agency is seeking to reuse the find- 8 ings and research was in close geographic prox- 9 imity to the proposed action; and 10 ‘‘(ii) the head of the Federal agency deter- 11 mines that the conditions under which the ap- 12 plicable findings and research were issued have 13 not substantially changed; or 14 ‘‘(B)(i) the project for which the head of 15 the Federal agency is seeking to reuse the find- 16 ings and research was not in close geographic 17 proximity to the proposed action; and 18 ‘‘(ii) the head of the Federal agency deter- 19 mines that the proposed action has similar 20 issues or decisions as the project. 21 ‘‘(3) REQUIREMENTS FOR CREATION OF ENVI- 22 RONMENTAL DOCUMENT BY QUALIFIED 3RD PAR- 23 TIES.— 24 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4590 IS ‘‘(A) IN GENERAL.—A qualified third 1 party may prepare an environmental document 2 intended to be adopted by a Federal agency as 3 the environmental impact statement, environ- 4 mental assessment, or other environmental doc- 5 ument for a proposed action under paragraph 6 (1)(B)(ii) if— 7 ‘‘(i) the project sponsor submits a 8 written request to the head of the applica- 9 ble Federal agency that the head of the 10 Federal agency approve the qualified third 11 party to create the document intended to 12 be adopted by a Federal agency as the en- 13 vironmental impact statement, environ- 14 mental assessment, or other environmental 15 document; and 16 ‘‘(ii) the head of the Federal agency 17 determines that— 18 ‘‘(I) the third party is qualified 19 to prepare the document; and 20 ‘‘(II) the third party has no fi- 21 nancial or other interest in the out- 22 come of the proposed action. 23 ‘‘(B) DEADLINE.—The head of a Federal 24 agency that receives a written request under 25 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4590 IS subparagraph (A)(i) shall issue a written deci- 1 sion approving or denying the request not later 2 than 30 days after the date on which the writ- 3 ten request is received. 4 ‘‘(C) NO PRIOR WORK.—The head of a 5 Federal agency may not adopt an environ- 6 mental document under paragraph (1)(B)(ii) if 7 the qualified third party began preparing the 8 document prior to the date on which the head 9 of the Federal agency issues the written deci- 10 sion under subparagraph (B) approving the re- 11 quest. 12 ‘‘(D) DENIALS.—If the head of a Federal 13 agency issues a written decision denying the re- 14 quest under subparagraph (A)(i), the head of 15 the Federal agency shall submit to the project 16 sponsor with the written decision the findings 17 that served as the basis of the denial. 18 ‘‘(4) UNEXPECTED CIRCUMSTANCES.—If, while 19 carrying out a proposed action after the completion 20 of the NEPA process for that proposed action, a 21 Federal agency or project sponsor encounters a new 22 or unexpected circumstance or condition that may 23 require the reevaluation of the proposed action 24 under this title, the head of the Federal agency with 25 VerDate Sep 11 2014 00:18 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4590 IS responsibility for carrying out the NEPA process for 1 the proposed action shall— 2 ‘‘(A) consider whether mitigating the new 3 or unexpected circumstance or condition is suf- 4 ficient to avoid significant effects that may re- 5 sult from the circumstance or condition; and 6 ‘‘(B) if the head of the Federal agency de- 7 termines under subparagraph (A) that the sig- 8 nificant effects that result from the cir- 9 cumstance or condition can be avoided, mitigate 10 the circumstance or condition without carrying 11 out the NEPA process again. 12 ‘‘(f) MULTI-AGENCY PROJECTS.— 13 ‘‘(1) DEFINITIONS.—In this subsection: 14 ‘‘(A) COOPERATING AGENCY.—The term 15 ‘cooperating agency’ means a Federal agency 16 involved in a proposed action that— 17 ‘‘(i) is not the lead agency; and 18 ‘‘(ii) has the jurisdiction or special ex- 19 pertise such that the Federal agency needs 20 to be consulted— 21 ‘‘(I) to use a categorical exclu- 22 sion; or 23 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4590 IS ‘‘(II) to prepare an environ- 1 mental assessment or environmental 2 impact statement, as applicable. 3 ‘‘(B) LEAD AGENCY.—The term ‘lead 4 agency’ means the Federal agency selected 5 under paragraph (2)(A). 6 ‘‘(2) AGENCY DESIGNATION.— 7 ‘‘(A) LEAD AGENCY.—In carrying out the 8 NEPA process for a proposed action that re- 9 quires authorization from multiple Federal 10 agencies, the heads of the applicable Federal 11 agencies shall determine the lead agency for the 12 proposed action. 13 ‘‘(B) INVITATION.—The head of the lead 14 agency may invite any relevant State, local, or 15 Tribal agency with Federal authorization deci- 16 sion responsibility to be a cooperating agency. 17 ‘‘(3) RESPONSIBILITIES OF LEAD AGENCY.— 18 The lead agency for a proposed action shall— 19 ‘‘(A) as soon as practicable and in con- 20 sultation with the cooperating agencies, deter- 21 mine whether a proposed action requires the 22 preparation of an environmental impact state- 23 ment; and 24 VerDate Sep 11 2014 19:31 Sep 22, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4590.IS S4590 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4590 IS ‘‘(B) if the head of the lead agency deter- 1 mines under subparagraph (A) that an environ- 2 mental impact statement is necessary— 3 ‘‘(i) be responsible for coordinating 4 the preparation of an environmental im- 5 pact statement; 6 ‘‘(ii) provide cooperating agencies with 7 an opportunity to review and contribute to 8 the preparation of the environmental im- 9 pact statement and environmental assess- 10 ment, as applicable, of the proposed action, 11 except that the cooperating agency shall 12 limit comments to issues within the special 13 expertise or jurisdiction of the cooperating 14 agency; and 15 ‘‘(iii) subject to subsection (b), as 16 soon as practicable and in consultation 17 with the cooperating agencies, determine 18 the range of alternatives to be considered 19 [Text truncated for display. Full text available on Congress.gov.]