NEPA Accountability and Enforcement Act of 2020

II 116TH CONGRESS 2D SESSION S. 4619 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 SEPTEMBER 17, 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 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 ‘‘NEPA Accountability 4 and Enforcement Act of 2020’’. 5 SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT 6 TIMELINES. 7 Title I of the National Environmental Policy Act of 8 1969 is amended— 9 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4619 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. APPLICABLE TIMELINES. 5 ‘‘(a) DEFINITIONS.—In this section: 6 ‘‘(1) ENVIRONMENTAL IMPACT STATEMENT.— 7 The term ‘environmental impact statement’ means a 8 detailed statement required under section 102(2)(C). 9 ‘‘(2) FEDERAL AGENCY.—The term ‘Federal 10 agency’ includes a State that has assumed responsi- 11 bility under section 327 of title 23, United States 12 Code. 13 ‘‘(3) HEAD OF A FEDERAL AGENCY.—The term 14 ‘head of a Federal agency’ includes the governor or 15 head of an applicable State agency of a State that 16 has assumed responsibility under section 327 of title 17 23, United States Code. 18 ‘‘(4) NEPA PROCESS.— 19 ‘‘(A) IN GENERAL.—The term ‘NEPA 20 process’ means the entirety of every process, 21 analysis, or other measure, including an envi- 22 ronmental impact statement, required to be car- 23 ried out by a Federal agency under this title be- 24 fore the agency undertakes a proposed action. 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4619 IS ‘‘(B) PERIOD.—For purposes of subpara- 1 graph (A), the NEPA process— 2 ‘‘(i) begins on the date on which the 3 head of a Federal agency receives an appli- 4 cation for a proposed action from a project 5 sponsor; and 6 ‘‘(ii) ends on the date on which the 7 Federal agency issues, with respect to the 8 proposed action— 9 ‘‘(I) a record of decision, includ- 10 ing, if necessary, a revised record of 11 decision; 12 ‘‘(II) a finding of no significant 13 impact; or 14 ‘‘(III) a categorical exclusion 15 under this title. 16 ‘‘(5) PROJECT SPONSOR.—The term ‘project 17 sponsor’ means a Federal agency or other entity, in- 18 cluding a private or public-private entity, that seeks 19 approval of a proposed action. 20 ‘‘(b) APPLICABLE TIMELINES.— 21 ‘‘(1) NEPA PROCESS.— 22 ‘‘(A) IN GENERAL.—The head of a Federal 23 agency shall complete the NEPA process for a 24 proposed action of the Federal agency, as de- 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4619 IS scribed in subsection (a)(4)(B)(ii), not later 1 than 2 years after the date described in sub- 2 section (a)(4)(B)(i). 3 ‘‘(B) ENVIRONMENTAL DOCUMENTS.— 4 Within the period described in subparagraph 5 (A), not later than 1 year after the date de- 6 scribed in subsection (a)(4)(B)(i), the head of 7 the Federal agency shall, with respect to the 8 proposed action— 9 ‘‘(i) issue— 10 ‘‘(I) a finding that a categorical 11 exclusion applies to the proposed ac- 12 tion; or 13 ‘‘(II) a finding of no significant 14 impact; or 15 ‘‘(ii) publish a notice of intent to pre- 16 pare an environmental impact statement in 17 the Federal Register. 18 ‘‘(C) ENVIRONMENTAL IMPACT STATE- 19 MENT.—If the head of a Federal agency pub- 20 lishes a notice of intent described in subpara- 21 graph (B)(ii), within the period described in 22 subparagraph (A) and not later than 1 year 23 after the date on which the head of the Federal 24 agency publishes the notice of intent, the head 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4619 IS of the Federal agency shall complete the envi- 1 ronmental impact statement and, if necessary, 2 any supplemental environmental impact state- 3 ment for the proposed action. 4 ‘‘(D) PENALTIES.— 5 ‘‘(i) DEFINITIONS.—In this subpara- 6 graph: 7 ‘‘(I) DIRECTOR.—The term ‘Di- 8 rector’ means the Director of the Of- 9 fice of Management and Budget. 10 ‘‘(II) FEDERAL AGENCY.—The 11 term ‘Federal agency’ does not in- 12 clude a State. 13 ‘‘(III) FINAL NEPA COMPLIANCE 14 DATE.—The term ‘final 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 complete the NEPA process 19 under subparagraph (A). 20 ‘‘(IV) HEAD OF A FEDERAL 21 AGENCY.—The term ‘head of a Fed- 22 eral agency’ does not include the gov- 23 ernor or head of a State agency of a 24 State. 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4619 IS ‘‘(V) INITIAL EIS COMPLIANCE 1 DATE.—The term ‘initial EIS compli- 2 ance date’, with respect to a proposed 3 action for which a Federal agency 4 published a notice of intent described 5 in subparagraph (B)(ii), means the 6 date by which an environmental im- 7 pact statement for that proposed ac- 8 tion is required to be completed under 9 subparagraph (C). 10 ‘‘(VI) INITIAL NEPA COMPLIANCE 11 DATE.—The term ‘initial NEPA com- 12 pliance date’, with respect to a pro- 13 posed action, means the date by which 14 the head of a Federal agency is re- 15 quired to issue or publish a document 16 described in subparagraph (B) for 17 that proposed action under that sub- 18 paragraph. 19 ‘‘(VII) INITIAL NONCOMPLIANCE 20 DETERMINATION.—The term ‘initial 21 noncompliance determination’ means 22 a determination under clause 23 (ii)(I)(bb) that the head of a Federal 24 agency has not complied with the re- 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4619 IS quirements of subparagraph (A), (B), 1 or (C). 2 ‘‘(ii) INITIAL NONCOMPLIANCE.— 3 ‘‘(I) DETERMINATION.— 4 ‘‘(aa) NOTIFICATION.—As 5 soon as practicable after the date 6 described in subsection 7 (a)(4)(B)(i) for a proposed action 8 of a Federal agency, the head of 9 the Federal agency shall notify 10 the Director that the head of the 11 Federal agency is beginning the 12 NEPA process for that proposed 13 action. 14 ‘‘(bb) DETERMINATIONS OF 15 COMPLIANCE.— 16 ‘‘(AA) INITIAL DETER- 17 MINATION.—As soon as 18 practicable after the initial 19 NEPA compliance date for a 20 proposed action, the Direc- 21 tor shall determine whether, 22 as of the initial NEPA com- 23 pliance date, the head of the 24 Federal agency has complied 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4619 IS with subparagraph (B) for 1 that proposed action. 2 ‘‘(BB) ENVIRON- 3 MENTAL IMPACT STATE- 4 MENT.—With respect to a 5 proposed action of a Federal 6 agency in which the head of 7 the Federal agency publishes 8 a notice of intent described 9 in subparagraph (B)(ii), as 10 soon as practicable after the 11 initial EIS compliance date 12 for a proposed action, the 13 Director shall determine 14 whether, as of the initial 15 EIS compliance date, the 16 head of the Federal agency 17 has complied with subpara- 18 graph (C) for that proposed 19 action. 20 ‘‘(CC) COMPLETION OF 21 NEPA PROCESS.—As soon as 22 practicable after the final 23 NEPA compliance date for a 24 proposed action, the Direc- 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4619 IS tor shall determine whether, 1 as of the final NEPA com- 2 pliance date, the head of the 3 Federal agency has complied 4 with subparagraph (A) for 5 that proposed action. 6 ‘‘(II) IDENTIFICATION; PENALTY; 7 NOTIFICATION.—If the Director 8 makes an initial noncompliance deter- 9 mination for a proposed action— 10 ‘‘(aa) the Director shall 11 identify the account for the sala- 12 ries and expenses of the office of 13 the head of the Federal agency, 14 or an equivalent account; 15 ‘‘(bb) beginning on the day 16 after the date on which the Di- 17 rector makes the initial non- 18 compliance determination, the 19 amount that the head of the Fed- 20 eral agency may obligate from 21 the account identified under item 22 (aa) for the fiscal year during 23 which the determination is made 24 shall be reduced by 0.5 percent 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4619 IS from the amount initially made 1 available for the account for that 2 fiscal year; and 3 ‘‘(cc) the Director shall no- 4 tify the head of the Federal 5 agency of— 6 ‘‘(AA) the initial non- 7 compliance determination; 8 ‘‘(BB) the account 9 identified under item (aa); 10 and 11 ‘‘(CC) the reduction 12 under item (bb). 13 ‘‘(iii) CONTINUED NONCOMPLIANCE.— 14 ‘‘(I) DETERMINATION.—Every 15 90 days after the date of an initial 16 noncompliance determination, the Di- 17 rector shall determine whether the 18 head of the Federal agency has com- 19 plied with the applicable requirements 20 of subparagraphs (A) through (C) for 21 the proposed action, until the date on 22 which the Director determines that 23 the head of the Federal agency has 24 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4619 IS completed the NEPA process for the 1 proposed action. 2 ‘‘(II) PENALTY; NOTIFICATION.— 3 For each determination made by the 4 Director under subclause (I) that the 5 head of a Federal agency has not 6 complied with a requirement of sub- 7 paragraph (A), (B), or (C) for a pro- 8 posed action— 9 ‘‘(aa) the amount that the 10 head of the Federal agency may 11 obligate from the account identi- 12 fied under clause (ii)(II)(aa) for 13 the fiscal year during which the 14 most recent determination under 15 subclause (I) is made shall be re- 16 duced by 0.5 percent from the 17 amount initially made available 18 for the account for that fiscal 19 year; and 20 ‘‘(bb) the Director shall no- 21 tify the head of the Federal 22 agency of— 23 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4619 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 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 13 •S 4619 IS cable compliance date under subpara- 1 graph (A), (B), or (C). 2 ‘‘(2) AUTHORIZATIONS AND PERMITS.— 3 ‘‘(A) IN GENERAL.—Not later than 90 4 days after the date described in subsection 5 (a)(4)(B)(ii), the head of a Federal agency shall 6 issue— 7 ‘‘(i) any necessary permit or author- 8 ization to carry out the proposed action; or 9 ‘‘(ii) a denial of the permit or author- 10 ization necessary to carry out the proposed 11 action. 12 ‘‘(B) EFFECT OF FAILURE TO ISSUE AU- 13 THORIZATION OR PERMIT.—If a permit or au- 14 thorization described in subparagraph (A) is 15 not issued or denied within the period described 16 in that subparagraph, the permit or authoriza- 17 tion shall be considered to be approved. 18 ‘‘(C) DENIAL OF PERMIT OR AUTHORIZA- 19 TION.— 20 ‘‘(i) IN GENERAL.—If a permit or au- 21 thorization described in subparagraph (A) 22 is denied, the head of the Federal agency 23 shall describe to the project sponsor— 24 ‘‘(I) the basis of the denial; and 25 VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS 14 •S 4619 IS ‘‘(II) recommendations for the 1 project sponsor with respect to how to 2 address the reasons for the denial. 3 ‘‘(ii) RECOMMENDED CHANGES.—If 4 the project sponsor carries out the rec- 5 ommendations of the head of the Federal 6 agency under clause (i)(II) and notifies the 7 head of the Federal agency that the rec- 8 ommendations have been carried out, the 9 head of the Federal agency— 10 ‘‘(I) shall decide whether to issue 11 the permit or authorization described 12 in subparagraph (A) not later than 90 13 days after date on which the project 14 sponsor submitted the notification; 15 and 16 ‘‘(II) shall not carry out the 17 NEPA process with respect to the 18 proposed action again.’’. 19 Æ VerDate Sep 11 2014 02:28 Sep 29, 2020 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6301 E:\BILLS\S4619.IS S4619 kjohnson on DSK79L0C42PROD with BILLS