NEPA Agency Process Reform Act of 2020

II 116TH CONGRESS 2D SESSION S. 4591 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 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 Reform Act of 2020’’. 5 SEC. 2. AGENCY PROCESS 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 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4591 IS (2) by inserting after section 104 (42 U.S.C. 1 4334) the following: 2 ‘‘SEC. 105. AGENCY PROCESS REFORMS. 3 ‘‘(a) DEFINITIONS.—In this section: 4 ‘‘(1) ENVIRONMENTAL ASSESSMENT.—The 5 term ‘environmental assessment’ has the meaning 6 given the term in section 1508.9 of title 40, Code of 7 Federal Regulations (or a successor regulation). 8 ‘‘(2) ENVIRONMENTAL IMPACT STATEMENT.— 9 The term ‘environmental impact statement’ means a 10 detailed statement required under section 102(2)(C). 11 ‘‘(3) FEDERAL AGENCY.—The term ‘Federal 12 agency’ includes a State that has assumed responsi- 13 bility under section 327 of title 23, United States 14 Code. 15 ‘‘(4) HEAD OF A FEDERAL AGENCY.—The term 16 ‘head of a Federal agency’ includes the governor or 17 head of an applicable State agency of a State that 18 has assumed responsibility under section 327 of title 19 23, United States Code. 20 ‘‘(5) NEPA PROCESS.— 21 ‘‘(A) IN GENERAL.—The term ‘NEPA 22 process’ means the entirety of every process, 23 analysis, or other measure, including an envi- 24 ronmental impact statement, required to be car- 25 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4591 IS ried out by a Federal agency under this title be- 1 fore the agency undertakes a proposed action. 2 ‘‘(B) PERIOD.—For purposes of subpara- 3 graph (A), the NEPA process— 4 ‘‘(i) begins on the date on which the 5 head of a Federal agency receives an appli- 6 cation for a proposed action from a project 7 sponsor; and 8 ‘‘(ii) ends on the date on which the 9 Federal agency issues, with respect to the 10 proposed action— 11 ‘‘(I) a record of decision, includ- 12 ing, if necessary, a revised record of 13 decision; 14 ‘‘(II) a finding of no significant 15 impact; or 16 ‘‘(III) a categorical exclusion 17 under this title. 18 ‘‘(6) PROJECT SPONSOR.—The term ‘project 19 sponsor’ means a Federal agency or other entity, in- 20 cluding a private or public-private entity, that seeks 21 approval of a proposed action. 22 ‘‘(b) PROHIBITIONS.—In carrying out the NEPA 23 process, the head of a Federal agency may not— 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4591 IS ‘‘(1) consider whether a proposed action or an 1 alternative to the proposed action considered by the 2 head of the Federal agency, including the design, en- 3 vironmental impact, mitigation measures, or adapta- 4 tion measures of the proposed action or alternative 5 to the proposed action, has an effect on climate 6 change; 7 ‘‘(2) with respect to a proposed action or an al- 8 ternative to the proposed action considered by the 9 head of the Federal agency, consider the effects of 10 the emission of greenhouse gases on climate change; 11 ‘‘(3) consider an alternative to the proposed ac- 12 tion if the proposed action is not technically or eco- 13 nomically feasible to the project sponsor; or 14 ‘‘(4) consider an alternative to the proposed ac- 15 tion that is not within the jurisdiction of the Federal 16 agency. 17 ‘‘(c) ENVIRONMENTAL DOCUMENTS.— 18 ‘‘(1) EIS REQUIRED.—In carrying out the 19 NEPA process for a proposed action that requires 20 the preparation of an environmental impact state- 21 ment, the head of a Federal agency shall produce for 22 the proposed action not more than 1— 23 ‘‘(A) environmental impact statement; 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4591 IS ‘‘(B) if necessary, environmental assess- 1 ment; and 2 ‘‘(C) record of decision. 3 ‘‘(2) EIS NOT REQUIRED.—In carrying out the 4 NEPA process for a proposed action that does not 5 require the preparation of an environmental impact 6 statement, the head of a Federal agency shall 7 produce for the proposed action not more than 1— 8 ‘‘(A) environmental assessment; or 9 ‘‘(B) finding of no significant impact. 10 ‘‘(d) CATEGORICAL EXCLUSIONS.— 11 ‘‘(1) IN GENERAL.—Notwithstanding any other 12 provision of law and subject to paragraph (2), the 13 head of a Federal agency may, without further ap- 14 proval, use a categorical exclusion under this title 15 that has been approved by— 16 ‘‘(A)(i) another Federal agency; and 17 ‘‘(ii) the Council on Environmental Qual- 18 ity; or 19 ‘‘(B) an Act of Congress. 20 ‘‘(2) REQUIREMENTS.—The head of a Federal 21 agency may use a categorical exclusion described in 22 paragraph (1) if the head of the Federal agency— 23 ‘‘(A) carefully reviews the description of 24 the proposed action to ensure that it fits within 25 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4591 IS the category of actions described in the categor- 1 ical exclusion; and 2 ‘‘(B) considers the circumstances associ- 3 ated with the proposed action to ensure that 4 there are no extraordinary circumstances that 5 warrant the preparation of an environmental 6 assessment or an environmental impact state- 7 ment. 8 ‘‘(3) EXTRAORDINARY CIRCUMSTANCES.—If the 9 head of a Federal agency determines that extraor- 10 dinary circumstances are present with respect to a 11 proposed action, the head of the Federal agency 12 shall— 13 ‘‘(A) consider whether mitigating cir- 14 cumstances or other conditions are sufficient to 15 avoid significant effects of the proposed action; 16 and 17 ‘‘(B) if the head of the Federal agency de- 18 termines that those significant effects can be 19 avoided, apply a categorical exclusion to the 20 proposed action. 21 ‘‘(e) REUSE OF WORK; DOCUMENTS PREPARED BY 22 QUALIFIED 3RD PARTIES; UNEXPECTED CIR- 23 CUMSTANCES.— 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4591 IS ‘‘(1) IN GENERAL.—In carrying out the NEPA 1 process for a proposed action— 2 ‘‘(A) subject to paragraph (2), the head of 3 a Federal agency shall— 4 ‘‘(i) use any applicable findings and 5 research from a prior NEPA process of 6 any Federal agency; and 7 ‘‘(ii) incorporate the findings and re- 8 search described in clause (i) into any ap- 9 plicable analysis under the NEPA process; 10 and 11 ‘‘(B) a Federal agency may adopt as an 12 environmental impact statement, environmental 13 assessment, or other environmental document 14 to achieve compliance with this title— 15 ‘‘(i) an environmental document pre- 16 pared under the law of the applicable State 17 if the head of the Federal agency deter- 18 mines that the environmental laws of the 19 applicable State— 20 ‘‘(I) provide the same level of en- 21 vironmental analysis as the analysis 22 required under this title; and 23 ‘‘(II) allow for the opportunity of 24 public comment; or 25 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4591 IS ‘‘(ii) subject to paragraph (3), an en- 1 vironmental document prepared by a quali- 2 fied third party chosen by the project spon- 3 sor, at the expense of the project sponsor, 4 if the head of the Federal agency— 5 ‘‘(I) provides oversight of the 6 preparation of the environmental doc- 7 ument by the third party; and 8 ‘‘(II) independently evaluates the 9 environmental document for the com- 10 pliance of the environmental document 11 with this title. 12 ‘‘(2) REQUIREMENT FOR THE REUSE OF FIND- 13 INGS AND RESEARCH.—The head of a Federal agen- 14 cy may reuse the applicable findings and research 15 described in paragraph (1)(A) if— 16 ‘‘(A)(i) the project for which the head of 17 the Federal agency is seeking to reuse the find- 18 ings and research was in close geographic prox- 19 imity to the proposed action; and 20 ‘‘(ii) the head of the Federal agency deter- 21 mines that the conditions under which the ap- 22 plicable findings and research were issued have 23 not substantially changed; or 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4591 IS ‘‘(B)(i) the project for which the head of 1 the Federal agency is seeking to reuse the find- 2 ings and research was not in close geographic 3 proximity to the proposed action; and 4 ‘‘(ii) the head of the Federal agency deter- 5 mines that the proposed action has similar 6 issues or decisions as the project. 7 ‘‘(3) REQUIREMENTS FOR CREATION OF ENVI- 8 RONMENTAL DOCUMENT BY QUALIFIED 3RD PAR- 9 TIES.— 10 ‘‘(A) IN GENERAL.—A qualified third 11 party may prepare an environmental document 12 intended to be adopted by a Federal agency as 13 the environmental impact statement, environ- 14 mental assessment, or other environmental doc- 15 ument for a proposed action under paragraph 16 (1)(B)(ii) if— 17 ‘‘(i) the project sponsor submits a 18 written request to the head of the applica- 19 ble Federal agency that the head of the 20 Federal agency approve the qualified third 21 party to create the document intended to 22 be adopted by a Federal agency as the en- 23 vironmental impact statement, environ- 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4591 IS mental assessment, or other environmental 1 document; and 2 ‘‘(ii) the head of the Federal agency 3 determines that— 4 ‘‘(I) the third party is qualified 5 to prepare the document; and 6 ‘‘(II) the third party has no fi- 7 nancial or other interest in the out- 8 come of the proposed action. 9 ‘‘(B) DEADLINE.—The head of a Federal 10 agency that receives a written request under 11 subparagraph (A)(i) shall issue a written deci- 12 sion approving or denying the request not later 13 than 30 days after the date on which the writ- 14 ten request is received. 15 ‘‘(C) NO PRIOR WORK.—The head of a 16 Federal agency may not adopt an environ- 17 mental document under paragraph (1)(B)(ii) if 18 the qualified third party began preparing the 19 document prior to the date on which the head 20 of the Federal agency issues the written deci- 21 sion under subparagraph (B) approving the re- 22 quest. 23 ‘‘(D) DENIALS.—If the head of a Federal 24 agency issues a written decision denying the re- 25 VerDate Sep 11 2014 00:35 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4591 IS quest under subparagraph (A)(i), the head of 1 the Federal agency shall submit to the project 2 sponsor with the written decision the findings 3 that served as the basis of the denial. 4 ‘‘(4) UNEXPECTED CIRCUMSTANCES.—If, while 5 carrying out a proposed action after the completion 6 of the NEPA process for that proposed action, a 7 Federal agency or project sponsor encounters a new 8 or unexpected circumstance or condition that may 9 require the reevaluation of the proposed action 10 under this title, the head of the Federal agency with 11 responsibility for carrying out the NEPA process for 12 the proposed action shall— 13 ‘‘(A) consider whether mitigating the new 14 or unexpected circumstance or condition is suf- 15 ficient to avoid significant effects that may re- 16 sult from the circumstance or condition; and 17 ‘‘(B) if the head of the Federal agency de- 18 termines under subparagraph (A) that the sig- 19 nificant effects that result from the cir- 20 cumstance or condition can be avoided, mitigate 21 the circumstance or condition without carrying 22 out the NEPA process again. 23 ‘‘(f) MULTI-AGENCY PROJECTS.— 24 ‘‘(1) DEFINITIONS.—In this subsection: 25 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4591 IS ‘‘(A) COOPERATING AGENCY.—The term 1 ‘cooperating agency’ means a Federal agency 2 involved in a proposed action that— 3 ‘‘(i) is not the lead agency; and 4 ‘‘(ii) has the jurisdiction or special ex- 5 pertise such that the Federal agency needs 6 to be consulted— 7 ‘‘(I) to use a categorical exclu- 8 sion; or 9 ‘‘(II) to prepare an environ- 10 mental assessment or environmental 11 impact statement, as applicable. 12 ‘‘(B) LEAD AGENCY.—The term ‘lead 13 agency’ means the Federal agency selected 14 under paragraph (2)(A). 15 ‘‘(2) AGENCY DESIGNATION.— 16 ‘‘(A) LEAD AGENCY.—In carrying out the 17 NEPA process for a proposed action that re- 18 quires authorization from multiple Federal 19 agencies, the heads of the applicable Federal 20 agencies shall determine the lead agency for the 21 proposed action. 22 ‘‘(B) INVITATION.—The head of the lead 23 agency may invite any relevant State, local, or 24 VerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4591 IS Tribal agency with Federal authorization deci- 1 sion responsibility to be a cooperating agency. 2 ‘‘(3) RESPONSIBILITIES OF LEAD AGENCY.— 3 The lead agency for a proposed action shall— 4 ‘‘(A) as soon as practicable and in con- 5 sultation with the cooperating agencies, deter- 6 mine whether a proposed action requires the 7 preparation of an environmental impact state- 8 ment; and 9 ‘‘(B) if the head of the lead agency deter- 10 mines under subparagraph (A) that an environ- 11 mental impact statement is necessary— 12 ‘‘(i) be responsible for coordinating 13 the preparation of an environmental im- 14 pact statement; 15 ‘‘(ii) provide cooperating agencies wi [Text truncated for display. 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