[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8333 Introduced in House (IH)]

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116th CONGRESS
  2d Session
                                H. R. 8333

   To amend the National Environmental Policy Act of 1969 to clarify 
  ambiguous provisions, align the Act with relevant case law, reflect 
modern technologies, optimize interagency coordination, and facilitate 
 a more efficient, effective, and timely environmental review process.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 22, 2020

 Mr. Graves of Louisiana (for himself, Mr. McCarthy, Mr. Scalise, Mr. 
  Walden, Mr. Bishop of Utah, Mr. Graves of Missouri, Mr. Lucas, Ms. 
 Granger, Mr. Cole, Mr. Comer, Mr. Young, Ms. Cheney, Mr. Lamborn, Mr. 
  Johnson of Louisiana, Mr. Stauber, Mr. Curtis, Mr. Gosar, Mr. Kevin 
 Hern of Oklahoma, Mr. Cook, Mr. McClintock, Mr. Westerman, Mr. Rodney 
Davis of Illinois, Mr. Newhouse, Mr. Carter of Georgia, Mrs. Radewagen, 
 Mr. Fulcher, and Mr. Hice of Georgia) introduced the following bill; 
        which was referred to the Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
   To amend the National Environmental Policy Act of 1969 to clarify 
  ambiguous provisions, align the Act with relevant case law, reflect 
modern technologies, optimize interagency coordination, and facilitate 
 a more efficient, effective, and timely environmental review process.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``BUILDER Act of 2020'' or the 
``Building United States Infrastructure through Limited Delays and 
Efficient Reviews Act of 2020''.

SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.

    (a) Paragraph (2) of Section 102.--Section 102(2) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is amended--
            (1) in subparagraph (A), by striking ``insure'' and 
        inserting ``ensure'';
            (2) in subparagraph (B), by striking ``insure'' and 
        inserting ``ensure'';
            (3) in subparagraph (C)--
                    (A) by inserting ``consistent with the provisions 
                of this Act and except as provided by other provisions 
                of law,'' before ``include in every'';
                    (B) by striking clauses (i) through (v) and 
                inserting the following:
                    ``(i) reasonably foreseeable environmental effects 
                with a reasonably close causal relationship to the 
                proposed agency action;
                    ``(ii) any reasonably foreseeable adverse 
                environmental effects which cannot be avoided should 
                the proposal be implemented;
                    ``(iii) a reasonable number of alternatives to the 
                proposed agency action that are technically and 
                economically feasible, are within the jurisdiction of 
                the agency, meet the purpose and need of the proposed 
                agency action, and, where applicable, meet the goals of 
                the applicant;
                    ``(iv) the relationship between local short-term 
                uses of man's environment and the maintenance and 
                enhancement of long-term productivity; and
                    ``(v) any irreversible and irretrievable 
                commitments of Federal resources which would be 
                involved in the proposed agency action should it be 
                implemented.''; and
                    (C) by striking ``the responsible Federal 
                official'' and inserting ``the head of the lead 
                agency'';
            (4) in subparagraph (D), by striking ``Any'' and inserting 
        ``any'';
            (5) by redesignating subparagraphs (D) through (I) as 
        subparagraphs (F) through (K), respectively;
            (6) by inserting after subparagraph (C) the following:
            ``(D) ensure the professional integrity, including 
        scientific integrity, of the discussion and analysis in an 
        environmental document;
            ``(E) make use of reliable existing data and resources in 
        carrying out this Act;'';
            (7) in subparagraph (G), as amended, by inserting 
        ``consistent with the provisions of this Act,'' before 
        ``study,''; and
            (8) in subparagraph (H), as amended, by inserting 
        ``consistent with the provisions of this Act'' before 
        ``recognize''.
    (b) New Sections.--Title I of the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.) is amended by adding at the end the 
following:

``SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF REVIEW.

    ``(a) Threshold Determinations.--An agency is not required to 
prepare an environmental document with respect to a proposed agency 
action if--
            ``(1) such action is not a final agency action within the 
        meaning of such term in chapter 5 of title 5, United States 
        Code;
            ``(2) such proposed agency action is covered by a 
        categorical exclusion established by a Federal agency;
            ``(3) the preparation of such document would clearly and 
        fundamentally conflict with the requirements of another 
        provision of law;
            ``(4) the proposed agency action is, in whole or in part, a 
        nondiscretionary action with respect to which such agency does 
        not have authority to take environmental factors into 
        consideration in determining whether to take the proposed 
        action; or
            ``(5) the proposed agency action is an action for which 
        such agency's compliance with another statute's requirements 
        serve the same function as the requirements of this Act with 
        respect to such action.
    ``(b) Levels of Review.--
            ``(1) Environmental impact statement.--An agency shall 
        issue an environmental impact statement with respect to a 
        proposed agency action that has a significant effect on the 
        quality of the human environment.
            ``(2) Environmental assessment.--An agency shall issue an 
        environmental assessment with respect to a proposed agency 
        action that is not likely to have a significant effect on the 
        quality of the human environment, or if the significance of 
        such effect is unknown. Such environmental assessment shall be 
        a concise public document prepared by a Federal agency to 
        provide notice to the public for the basis of such agency's 
        finding of no significant impact.
            ``(3) Sources of information.--In making a determination 
        under this subsection, an agency--
                    ``(A) may make use of any reliable data source; and
                    ``(B) is not required to undertake new scientific 
                or technical research.

``SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS.

    ``(a) Lead Agency.--
            ``(1) Designation.--If there are two or more involved 
        Federal agencies, such agencies shall determine, by letter or 
        memorandum, which agency shall be the lead agency based on 
        consideration of the following factors:
                    ``(A) Magnitude of agency's involvement.
                    ``(B) Project approval or disapproval authority.
                    ``(C) Expertise concerning the action's 
                environmental effects.
                    ``(D) Duration of agency's involvement.
                    ``(E) Sequence of agency's involvement.
            ``(2) Joint lead agencies.--In making a determination under 
        paragraph (1), the involved Federal agencies may, in addition 
        to a Federal agency, appoint such Federal, State, Tribal, or 
        local agencies as joint lead agencies as the involved Federal 
        agencies shall determine appropriate. Joint lead agencies shall 
        jointly fulfill the role described in paragraph (3).
            ``(3) Role.--A lead agency shall, with respect to a 
        proposed agency action--
                    ``(A) supervise the preparation of an environmental 
                document if, with respect to such proposed agency 
                action, there is more than one involved Federal agency;
                    ``(B) request the participation of each cooperating 
                agency;
                    ``(C) in preparing an environmental document, give 
                consideration to any analysis or proposal created by a 
                cooperating agency with jurisdiction by law or special 
                expertise;
                    ``(D) develop a schedule, in consultation with each 
                involved cooperating agency and such other entities as 
                the lead agency determines appropriate, for completion 
                of any environmental review, permit, or authorization 
                required to carry out the proposed agency action;
                    ``(E) if the lead agency determines that a review, 
                permit, or authorization will not be completed in 
                accordance with the schedule developed under 
                subparagraph (D), notify the agency responsible for 
                issuing such review, permit, or authorization of the 
                discrepancy and request that such agency take such 
                measures as such agency determines appropriate to 
                comply with such schedule; and
                    ``(F) meet with a cooperating agency that requests 
                such a meeting.
            ``(4) Cooperating agency.--The lead agency may, with 
        respect to a proposed agency action, designate any involved 
        Federal agency or a State, Tribal, or local agency as a 
        cooperating agency. A cooperating agency may, not later than a 
        date specified by the lead agency, submit comments to the lead 
        agency. Such comments shall be limited to matters relating to 
        the proposed agency action with respect to which such agency 
        has special expertise or jurisdiction by law with respect to an 
        environmental issue.
            ``(5) Request for designation.--Any Federal, State, Tribal, 
        or local agency or person that is substantially affected by the 
        lack of a designation of a lead agency with respect to a 
        proposed agency action under paragraph (1) may submit a written 
        request for such a designation to an involved Federal agency. 
        An agency that receives a request under this paragraph shall 
        transmit such request to each involved Federal agency and to 
        the Council.
            ``(6) Council designation.--
                    ``(A) Request.--Not earlier than 45 days after the 
                date on which a request is submitted under paragraph 
                (5), if no designation has been made under paragraph 
                (1), a Federal, State, Tribal, or local agency or 
                person that is substantially affected by the lack of a 
                designation of a lead agency may request that the 
                Council designate a lead agency. Such request shall 
                consist of--
                            ``(i) a precise description of the nature 
                        and extent of the proposed agency action; and
                            ``(ii) a detailed statement with respect to 
                        each involved Federal agency and each factor 
                        listed in paragraph (1) regarding which agency 
                        should serve as lead agency.
                    ``(B) Transmission.--The Council shall transmit a 
                request received under subparagraph (A) to each 
                involved Federal agency.
                    ``(C) Response.--An involved Federal agency may, 
                not later than 20 days after the date of the submission 
                of a request under subparagraph (A), submit to the 
                Council a response to such request.
                    ``(D) Designation.--Not later than 40 days after 
                the date of the submission of a request under 
                subparagraph (A), the Council shall designate the lead 
                agency with respect to the relevant proposed agency 
                action.
    ``(b) One Document.--To the extent practicable, if there are 2 or 
more involved Federal agencies with respect to a proposed agency action 
and the lead agency has determined that section 102(2)(C) requires the 
issuance of an environmental document, such requirement shall be deemed 
satisfied with respect to all involved Federal agencies if the lead 
agency issues such an environmental document.
    ``(c) Request for Public Comment.--Each notice of intent to prepare 
an environmental impact statement under section 102 shall include a 
request for public comment on potential alternatives or impacts and on 
relevant information, studies, or analyses with respect to the proposed 
agency action.
    ``(d) Statement of Purpose and Need.--Each environmental impact 
statement shall include a statement of purpose and need that briefly 
summarizes the underlying purpose and need for the proposed agency 
action.
    ``(e) Estimated Total Cost.--The cover sheet for each environmental 
impact statement shall include a statement of the estimated total cost 
of preparing such environmental impact statement, including the costs 
of agency full-time equivalent personnel hours, contractor costs, and 
other direct costs.
    ``(f) Sponsor Preparation.--A lead agency may allow a project 
sponsor to prepare an environmental assessment or an environmental 
impact statement, if such agency provides such sponsor with appropriate 
guidance and assists in the preparation. The lead agency shall 
independently evaluate the environmental document and shall take 
responsibility for the contents upon adoption.
    ``(g) Deadlines.--
            ``(1) Issuance of environmental impact statement.--Except 
        as provided in paragraph (2), with respect to a proposed agency 
        action, a lead agency shall complete--
                    ``(A) the environmental impact statement not later 
                than the date that is 2 years after the date on which 
                such agency determines that section 102(2)(C) requires 
                the issuance of an environmental impact statement with 
                respect to such action; or
                    ``(B) the environmental assessment not later than 
                the date that is 1 year after the date on which such 
                agency determines that such 102(2)(C) requires the 
                issuance of an environmental assessment with respect to 
                such action.
            ``(2) Delay.--A lead agency that determines it is not able 
        to meet the deadline described in paragraph (1) may approve a 
        delay of such deadline in writing and establish a new timeline 
        that provides only so much additional time as is necessary to 
        complete such environmental impact statement or environmental 
        assessment.

``SEC. 108. JUDICIAL REVIEW.

    ``(a) Limitations on Claims.--Notwithstanding any other provision 
of law, a claim arising under Federal law seeking judicial review of 
compliance with this Act, of a determination made under this Act, or of 
Federal action resulting from a determination made under this Act, 
shall be barred unless--
            ``(1) in the case of a claim pertaining to a proposed 
        agency action for which--
                    ``(A) an environmental document was prepared and an 
                opportunity for comment was provided;
                    ``(B) the claim is filed by a party that 
                participated in the administrative proceedings 
                regarding such environmental document; or
                    ``(C) the claim is filed by a party that submitted 
                a comment during the public comment period for such 
                administrative proceedings and such comment was 
                sufficiently detailed to put the lead agency on notice 
                of the issue upon which the party seeks judicial 
                review;
            ``(2) except as provided in subsection (b), such claim is 
        filed not later than 120 days after the date of publication of 
        a notice in the Federal Register of agency intent to carry out 
        the proposed agency action;
            ``(3) such claim is filed after the issuance of a record of 
        decision or other final agency action with respect to the 
        relevant proposed agency action; and
            ``(4) such claim does not challenge the establishment of a 
        categorical exclusion under section 102.
    ``(b) Supplemental Environmental Impact Statement.--
            ``(1) Separate final agency action.--The issuance of a 
        supplemental environmental impact statement shall be considered 
        a final agency action for the purposes of chapter 5 of title 5, 
        United States Code, separate from the issuance of any previous 
        environmental impact statement with respect to the same 
        proposed agency action.
            ``(2) Deadline for filing a claim.--A claim seeking 
        judicial review of a supplemental environmental review issued 
        under section 102(2)(C) shall be barred unless--
                    ``(A) such claim is filed within 120 days of the 
                date on which such supplemental environmental impact 
                statement is issued; and
                    ``(B) such claim is based on information contained 
                in such supplemental environmental impact statement 
                that was not contained in a previous environmental 
                document pertaining to the same proposed agency action.
    ``(c) Prohibition on Injunctive Relief.--Notwithstanding any other 
provision of law, a violation of this Act shall not constitute the 
basis for injunctive relief.
    ``(d) Rule of Construction.--Nothing in this subsection shall be 
construed to create a right of judicial review or place any limit on 
filing a claim with respect to the violation of the terms of a permit, 
license, or approval.

``SEC. 109. DEFINITIONS.

    ``In this title:
            ``(1) Categorical exclusion.--The term `categorical 
        exclusion' means a category of actions that a Federal agency 
        has determined normally does not significantly affect the 
        quality of the human environment within the meaning of section 
        102(2)(C).
            ``(2) Cooperating agency.--The term `cooperating agency' 
        means any Federal, State, Tribal, or local agency that has been 
        designated as a cooperating agency under section 107(a)(4).
            ``(3) Council.--The term `Council' means the Council on 
        Environmental Quality established in title II.
            ``(4) Environmental assessment.--The term `environmental 
        assessment' means an environmental assessment prepared under 
        section 106(b)(2).
            ``(5) Environmental document.--The term `environmental 
        document' means an environmental impact statement, an 
        environmental assessment, or a finding of no significant 
        impact.
            ``(6) Environmental impact statement.--The term 
        `environmental impact statement' means a detailed written 
        statement that is required by section 102(2)(C) of this Act.
            ``(7) Finding of no significant impact.--The term `finding 
        of no significant impact' means a determination by a Federal 
        agency that a proposed agency action does not require the 
        issuance of an environmental impact statement.
            ``(8) Involved federal agency.--The term `involved Federal 
        agency' means an agency that, with respect to a proposed agency 
        action--
                    ``(A) proposed such action; or
                    ``(B) is involved in such action because such 
                action is directly related, through functional 
                interdependence or geographic proximity, in an action 
                such agency has taken or has proposed to take.
            ``(9) Lead agency.--The term `lead agency' means, with 
        respect to a proposed agency action--
                    ``(A) the agency that proposed such action; or
                    ``(B) if there are 2 or more involved Federal 
                agencies with respect to such action, the agency 
                designated under section 107(a).
            ``(10) Major federal action.--
                    ``(A) In general.--The term `major Federal action' 
                means an action that the agency carrying out such 
                action determines is subject to Federal control and 
                responsibility.
                    ``(B) Exclusion.--The term `major Federal action' 
                does not include--
                            ``(i) a non-Federal action with minimal 
                        Federal funding or minimal Federal involvement 
                        where a Federal agency cannot control the 
                        outcome of the project;
                            ``(ii) funding assistance solely in the 
                        form of general revenue sharing funds with no 
                        Federal agency control over the subsequent use 
                        of such funds;
                            ``(iii) loans, loan guarantees, or other 
                        forms of financial assistance where a Federal 
                        agency does not exercise sufficient control and 
                        responsibility over the effect of the action;
                            ``(iv) farm ownership and operating loan 
                        guarantees by the Farm Service Agency pursuant 
                        to sections 305 and 311 through 319 of the 
                        Consolidated Farmers Home Administration Act of 
                        1961 (7 U.S.C. 1925 and 1941 through 1949);
                            ``(v) business loan guarantees provided by 
                        the Small Business Administration pursuant to 
                        section 7(a) or (b) and of the Small Business 
                        Act (15 U.S.C. 636(a)), or title V of the Small 
                        Business Investment Act of 1958 (15 U.S.C. 695 
                        et seq.); or
                            ``(vi) bringing judicial or administrative 
                        civil or criminal enforcement actions.
            ``(11) Reasonably foreseeable.--The term `reasonably 
        foreseeable' means sufficiently likely to occur such that an 
        individual of ordinary prudence would take such occurrence into 
        account in reaching a decision.''.
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