[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4862 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4862

 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

             October 26 (legislative day, October 19), 2020

    Mr. Lee (for himself, Mr. Cramer, and Mr. Cruz) 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 required actions under the Act, and 
                          for other purposes.

    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 ``Undoing NEPA's Substantial Harm by 
Advancing Concepts that Kickstart the Liberation of the Economy Act of 
2020'' or the ``UNSHACKLE Act of 2020''.

SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT MODIFICATIONS.

    (a) Applicable Timelines.--Title I of the National Environmental 
Policy Act of 1969 is amended--
            (1) by redesignating section 105 (42 U.S.C. 4335) as 
        section 108; and
            (2) by inserting after section 104 (42 U.S.C. 4334) the 
        following:

``SEC. 105. PROCESS REQUIREMENTS.

    ``(a) Definitions.--In this section:
            ``(1) Federal agency.--The term `Federal agency' includes a 
        State that has assumed the responsibility of a Federal agency 
        under--
                    ``(A) section 107; or
                    ``(B) section 327 of title 23, United States Code.
            ``(2) Head of a federal agency.--The term `head of a 
        Federal agency' includes the governor or head of an applicable 
        State agency of a State that has assumed the responsibility of 
        a Federal agency under--
                    ``(A) section 107; or
                    ``(B) section 327 of title 23, United States Code.
    ``(b) Applicable Timelines.--
            ``(1) NEPA process.--
                    ``(A) In general.--The head of a Federal agency 
                shall complete the NEPA process for a proposed action 
                of the Federal agency, as described in section 
                109(3)(B)(ii), not later than 2 years after the date 
                described in section 109(3)(B)(i).
                    ``(B) Environmental documents.--Within the period 
                described in subparagraph (A), not later than 1 year 
                after the date described in section 109(3)(B)(i), the 
                head of the Federal agency shall, with respect to the 
                proposed action--
                            ``(i) issue--
                                    ``(I) a finding that a categorical 
                                exclusion applies to the proposed 
                                action; or
                                    ``(II) a finding of no significant 
                                impact; or
                            ``(ii) publish a notice of intent to 
                        prepare an environmental impact statement in 
                        the Federal Register.
                    ``(C) Environmental impact statement.--If the head 
                of a Federal agency publishes a notice of intent 
                described in subparagraph (B)(ii), within the period 
                described in subparagraph (A) and not later than 1 year 
                after the date on which the head of the Federal agency 
                publishes the notice of intent, the head of the Federal 
                agency shall complete the environmental impact 
                statement and, if necessary, any supplemental 
                environmental impact statement for the proposed action.
                    ``(D) Penalties.--
                            ``(i) Definitions.--In this subparagraph:
                                    ``(I) Director.--The term 
                                `Director' means the Director of the 
                                Office of Management and Budget.
                                    ``(II) Federal agency.--The term 
                                `Federal agency' does not include a 
                                State.
                                    ``(III) Final nepa compliance 
                                date.--The term `final NEPA compliance 
                                date', with respect to a proposed 
                                action, means the date by which the 
                                head of a Federal agency is required to 
                                complete the NEPA process under 
                                subparagraph (A).
                                    ``(IV) Head of a federal agency.--
                                The term `head of a Federal agency' 
                                does not include the governor or head 
                                of a State agency of a State.
                                    ``(V) Initial eis compliance 
                                date.--The term `initial EIS compliance 
                                date', with respect to a proposed 
                                action for which a Federal agency 
                                published a notice of intent described 
                                in subparagraph (B)(ii), means the date 
                                by which an environmental impact 
                                statement for that proposed action is 
                                required to be completed under 
                                subparagraph (C).
                                    ``(VI) Initial nepa compliance 
                                date.--The term `initial NEPA 
                                compliance date', with respect to a 
                                proposed action, means the date by 
                                which the head of a Federal agency is 
                                required to issue or publish a document 
                                described in subparagraph (B) for that 
                                proposed action under that 
                                subparagraph.
                                    ``(VII) Initial noncompliance 
                                determination.--The term `initial 
                                noncompliance determination' means a 
                                determination under clause (ii)(I)(bb) 
                                that the head of a Federal agency has 
                                not complied with the requirements of 
                                subparagraph (A), (B), or (C).
                            ``(ii) Initial noncompliance.--
                                    ``(I) Determination.--
                                            ``(aa) Notification.--As 
                                        soon as practicable after the 
                                        date described in section 
                                        109(3)(B)(i) for a proposed 
                                        action of a Federal agency, the 
                                        head of the Federal agency 
                                        shall notify the Director that 
                                        the head of the Federal agency 
                                        is beginning the NEPA process 
                                        for that proposed action.
                                            ``(bb) Determinations of 
                                        compliance.--

                                                    ``(AA) Initial 
                                                determination.--As soon 
                                                as practicable after 
                                                the initial NEPA 
                                                compliance date for a 
                                                proposed action, the 
                                                Director shall 
                                                determine whether, as 
                                                of the initial NEPA 
                                                compliance date, the 
                                                head of the Federal 
                                                agency has complied 
                                                with subparagraph (B) 
                                                for that proposed 
                                                action.

                                                    ``(BB) 
                                                Environmental impact 
                                                statement.--With 
                                                respect to a proposed 
                                                action of a Federal 
                                                agency in which the 
                                                head of the Federal 
                                                agency publishes a 
                                                notice of intent 
                                                described in 
                                                subparagraph (B)(ii), 
                                                as soon as practicable 
                                                after the initial EIS 
                                                compliance date for a 
                                                proposed action, the 
                                                Director shall 
                                                determine whether, as 
                                                of the initial EIS 
                                                compliance date, the 
                                                head of the Federal 
                                                agency has complied 
                                                with subparagraph (C) 
                                                for that proposed 
                                                action.

                                                    ``(CC) Completion 
                                                of nepa process.--As 
                                                soon as practicable 
                                                after the final NEPA 
                                                compliance date for a 
                                                proposed action, the 
                                                Director shall 
                                                determine whether, as 
                                                of the final NEPA 
                                                compliance date, the 
                                                head of the Federal 
                                                agency has complied 
                                                with subparagraph (A) 
                                                for that proposed 
                                                action.

                                    ``(II) Identification; penalty; 
                                notification.--If the Director makes an 
                                initial noncompliance determination for 
                                a proposed action--
                                            ``(aa) the Director shall 
                                        identify the account for the 
                                        salaries and expenses of the 
                                        office of the head of the 
                                        Federal agency, or an 
                                        equivalent account;
                                            ``(bb) beginning on the day 
                                        after the date on which the 
                                        Director makes the initial 
                                        noncompliance determination, 
                                        the amount that the head of the 
                                        Federal agency may obligate 
                                        from the account identified 
                                        under item (aa) for the fiscal 
                                        year during which the 
                                        determination is made shall be 
                                        reduced by 0.5 percent from the 
                                        amount initially made available 
                                        for the account for that fiscal 
                                        year; and
                                            ``(cc) the Director shall 
                                        notify the head of the Federal 
                                        agency of--

                                                    ``(AA) the initial 
                                                noncompliance 
                                                determination;

                                                    ``(BB) the account 
                                                identified under item 
                                                (aa); and

                                                    ``(CC) the 
                                                reduction under item 
                                                (bb).

                            ``(iii) Continued noncompliance.--
                                    ``(I) Determination.--Every 90 days 
                                after the date of an initial 
                                noncompliance determination, the 
                                Director shall determine whether the 
                                head of the Federal agency has complied 
                                with the applicable requirements of 
                                subparagraphs (A) through (C) for the 
                                proposed action, until the date on 
                                which the Director determines that the 
                                head of the Federal agency has 
                                completed the NEPA process for the 
                                proposed action.
                                    ``(II) Penalty; notification.--For 
                                each determination made by the Director 
                                under subclause (I) that the head of a 
                                Federal agency has not complied with a 
                                requirement of subparagraph (A), (B), 
                                or (C) for a proposed action--
                                            ``(aa) the amount that the 
                                        head of the Federal agency may 
                                        obligate from the account 
                                        identified under clause 
                                        (ii)(II)(aa) for the fiscal 
                                        year during which the most 
                                        recent determination under 
                                        subclause (I) is made shall be 
                                        reduced by 0.5 percent from the 
                                        amount initially made available 
                                        for the account for that fiscal 
                                        year; and
                                            ``(bb) the Director shall 
                                        notify the head of the Federal 
                                        agency of--

                                                    ``(AA) the 
                                                determination under 
                                                subclause (I); and

                                                    ``(BB) the 
                                                reduction under item 
                                                (aa).

                            ``(iv) Requirements.--
                                    ``(I) Amounts not restored.--A 
                                reduction in the amount that the head 
                                of a Federal agency may obligate under 
                                clause (ii)(II)(bb) or (iii)(II)(aa) 
                                during a fiscal year shall not be 
                                restored for that fiscal year, without 
                                regard to whether the head of a Federal 
                                agency completes the NEPA process for 
                                the proposed action with respect to 
                                which the Director made an initial 
                                noncompliance determination or a 
                                determination under clause (iii)(I).
                                    ``(II) Required timelines.--The 
                                violation of subparagraph (B) or (C), 
                                and any action carried out to remediate 
                                or otherwise address the violation, 
                                shall not affect any other applicable 
                                compliance date under subparagraph (A), 
                                (B), or (C).
                    ``(E) Unexpected circumstances.--If, while carrying 
                out a proposed action after the completion of the NEPA 
                process for that proposed action, a Federal agency or 
                project sponsor encounters a new or unexpected 
                circumstance or condition that may require the 
                reevaluation of the proposed action under this title, 
                the head of the Federal agency with responsibility for 
                carrying out the NEPA process for the proposed action 
                shall--
                            ``(i) consider whether mitigating the new 
                        or unexpected circumstance or condition is 
                        sufficient to avoid significant effects that 
                        may result from the circumstance or condition; 
                        and
                            ``(ii) if the head of the Federal agency 
                        determines under clause (i) that the 
                        significant effects that result from the 
                        circumstance or condition can be avoided, 
                        mitigate the circumstance or condition without 
                        carrying out the NEPA process again.
            ``(2) Authorizations and permits.--
                    ``(A) In general.--Not later than 90 days after the 
                date described in section 109(3)(B)(ii), the head of a 
                Federal agency shall issue--
                            ``(i) any necessary permit or authorization 
                        to carry out the proposed action; or
                            ``(ii) a denial of the permit or 
                        authorization necessary to carry out the 
                        proposed action.
                    ``(B) Effect of failure to issue authorization or 
                permit.--If a permit or authorization described in 
                subparagraph (A) is not issued or denied within the 
                period described in that subparagraph, the permit or 
                authorization shall be considered to be approved.
                    ``(C) Denial of permit or authorization.--
                            ``(i) In general.--If a permit or 
                        authorization described in subparagraph (A) is 
                        denied, the head of the Federal agency shall 
                        describe to the project sponsor--
                                    ``(I) the basis of the denial; and
                                    ``(II) recommendations for the 
                                project sponsor with respect to how to 
                                address the reasons for the denial.
                            ``(ii) Recommended changes.--If the project 
                        sponsor carries out the recommendations of the 
                        head of the Federal agency under clause (i)(II) 
                        and notifies the head of the Federal agency 
                        that the recommendations have been carried out, 
                        the head of the Federal agency--
                                    ``(I) shall decide whether to issue 
                                the permit or authorization described 
                                in subparagraph (A) not later than 90 
                                days after date on which the project 
                                sponsor submitted the notification; and
                                    ``(II) shall not carry out the NEPA 
                                process with respect to the proposed 
                                action again.''.
    (b) Agency Process Reforms.--Section 105 of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (as added by 
subsection (a)(2)) is amended by adding at the end the following:
    ``(c) Prohibitions.--In carrying out the NEPA process, the head of 
a Federal agency may not--
            ``(1) consider whether a proposed action or an alternative 
        to the proposed action considered by the head of the Federal 
        agency, including the design, environmental impact, mitigation 
        measures, or adaptation measures of the proposed action or 
        alternative to the proposed action, has an effect on climate 
        change;
            ``(2) with respect to a proposed action or an alternative 
        to the proposed action considered by the head of the Federal 
        agency, consider the effects of the emission of greenhouse 
        gases on climate change;
            ``(3) consider an alternative to the proposed action if the 
        proposed action is not technically or economically feasible to 
        the project sponsor; or
            ``(4) consider an alternative to the proposed action that 
        is not within the jurisdiction of the Federal agency.
    ``(d) Environmental Documents.--
            ``(1) EIS required.--In carrying out the NEPA process for a 
        proposed action that requires the preparation of an 
        environmental impact statement, the head of a Federal agency 
        shall produce for the proposed action not more than 1--
                    ``(A) environmental impact statement;
                    ``(B) if necessary, environmental assessment; and
                    ``(C) record of decision.
            ``(2) EIS not required.--In carrying out the NEPA process 
        for a proposed action that does not require the preparation of 
        an environmental impact statement, the head of a Federal agency 
        shall produce for the proposed action not more than 1--
                    ``(A) environmental assessment; or
                    ``(B) finding of no significant impact.
    ``(e) Categorical Exclusions.--
            ``(1) In general.--Notwithstanding any other provision of 
        law and subject to paragraph (2), the head of a Federal agency 
        may, without further approval, use a categorical exclusion 
        under this title that has been approved by--
                    ``(A)(i) another Federal agency; and
                    ``(ii) the Council on Environmental Quality; or
                    ``(B) an Act of Congress.
            ``(2) Requirements.--The head of a Federal agency may use a 
        categorical exclusion described in paragraph (1) if the head of 
        the Federal agency--
                    ``(A) carefully reviews the description of the 
                proposed action to ensure that it fits within the 
                category of actions described in the categorical 
                exclusion; and
                    ``(B) considers the circumstances associated with 
                the proposed action to ensure that there are no 
                extraordinary circumstances that warrant the 
                preparation of an environmental assessment or an 
                environmental impact statement.
            ``(3) Extraordinary circumstances.--If the head of a 
        Federal agency determines that extraordinary circumstances are 
        present with respect to a proposed action, the head of the 
        Federal agency shall--
                    ``(A) consider whether mitigating circumstances or 
                other conditions are sufficient to avoid significant 
                effects of the proposed action; and
                    ``(B) if the head of the Federal agency determines 
                that those significant effects can be avoided, apply a 
                categorical exclusion to the proposed action.
    ``(f) Reuse of Work; Documents Prepared by Qualified 3rd Parties.--
            ``(1) In general.--In carrying out the NEPA process for a 
        proposed action--
                    ``(A) subject to paragraph (2), the head of a 
                Federal agency shall--
                            ``(i) use any applicable findings and 
                        research from a prior NEPA process of any 
                        Federal agency; and
                            ``(ii) incorporate the findings and 
                        research described in clause (i) into any 
                        applicable analysis under the NEPA process; and
                    ``(B) a Federal agency may adopt as an 
                environmental impact statement, environmental 
                assessment, or other environmental document to achieve 
                compliance with this title--
                            ``(i) an environmental document prepared 
                        under the law of the applicable State if the 
                        head of the Federal agency determines that the 
                        environmental laws of the applicable State--
                                    ``(I) provide the same level of 
                                environmental analysis as the analysis 
                                required under this title; and
                                    ``(II) allow for the opportunity of 
                                public comment; or
                            ``(ii) subject to paragraph (3), an 
                        environmental document prepared by a qualified 
                        third party chosen by the project sponsor, at 
                        the expense of the project sponsor, if the head 
                        of the Federal agency--
                                    ``(I) provides oversight of the 
                                preparation of the environmental 
                                document by the third party; and
                                    ``(II) independently evaluates the 
                                environmental document for the 
                                compliance of the environmental 
                                document with this title.
            ``(2) Requirement for the reuse of findings and research.--
        The head of a Federal agency may reuse the applicable findings 
        and research described in paragraph (1)(A) if--
                    ``(A)(i) the project for which the head of the 
                Federal agency is seeking to reuse the findings and 
                research was in close geographic proximity to the 
                proposed action; and
                    ``(ii) the head of the Federal agency determines 
                that the conditions under which the applicable findings 
                and research were issued have not substantially 
                changed; or
                    ``(B)(i) the project for which the head of the 
                Federal agency is seeking to reuse the findings and 
                research was not in close geographic proximity to the 
                proposed action; and
                    ``(ii) the head of the Federal agency determines 
                that the proposed action has similar issues or 
                decisions as the project.
            ``(3) Requirements for creation of environmental document 
        by qualified 3rd parties.--
                    ``(A) In general.--A qualified third party may 
                prepare an environmental document intended to be 
                adopted by a Federal agency as the environmental impact 
                statement, environmental assessment, or other 
                environmental document for a proposed action under 
                paragraph (1)(B)(ii) if--
                            ``(i) the project sponsor submits a written 
                        request to the head of the applicable Federal 
                        agency that the head of the Federal agency 
                        approve the qualified third party to create the 
                        document intended to be adopted by a Federal 
                        agency as the environmental impact statement, 
                        environmental assessment, or other 
                        environmental document; and
                            ``(ii) the head of the Federal agency 
                        determines that--
                                    ``(I) the third party is qualified 
                                to prepare the document; and
                                    ``(II) the third party has no 
                                financial or other interest in the 
                                outcome of the proposed action.
                    ``(B) Deadline.--The head of a Federal agency that 
                receives a written request under subparagraph (A)(i) 
                shall issue a written decision approving or denying the 
                request not later than 30 days after the date on which 
                the written request is received.
                    ``(C) No prior work.--The head of a Federal agency 
                may not adopt an environmental document under paragraph 
                (1)(B)(ii) if the qualified third party began preparing 
                the document prior to the date on which the head of the 
                Federal agency issues the written decision under 
                subparagraph (B) approving the request.
                    ``(D) Denials.--If the head of a Federal agency 
                issues a written decision denying the request under 
                subparagraph (A)(i), the head of the Federal agency 
                shall submit to the project sponsor with the written 
                decision the findings that served as the basis of the 
                denial.
    ``(g) Multi-Agency Projects.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Cooperating agency.--The term `cooperating 
                agency' means a Federal agency involved in a proposed 
                action that--
                            ``(i) is not the lead agency; and
                            ``(ii) has the jurisdiction or special 
                        expertise such that the Federal agency needs to 
                        be consulted--
                                    ``(I) to use a categorical 
                                exclusion; or
                                    ``(II) to prepare an environmental 
                                assessment or environmental impact 
                                statement, as applicable.
                    ``(B) Lead agency.--The term `lead agency' means 
                the Federal agency selected under paragraph (2)(A).
            ``(2) Agency designation.--
                    ``(A) Lead agency.--In carrying out the NEPA 
                process for a proposed action that requires 
                authorization from multiple Federal agencies, the heads 
                of the applicable Federal agencies shall determine the 
                lead agency for the proposed action.
                    ``(B) Invitation.--The head of the lead agency may 
                invite any relevant State, local, or Tribal agency with 
                Federal authorization decision responsibility to be a 
                cooperating agency.
            ``(3) Responsibilities of lead agency.--The lead agency for 
        a proposed action shall--
                    ``(A) as soon as practicable and in consultation 
                with the cooperating agencies, determine whether a 
                proposed action requires the preparation of an 
                environmental impact statement; and
                    ``(B) if the head of the lead agency determines 
                under subparagraph (A) that an environmental impact 
                statement is necessary--
                            ``(i) be responsible for coordinating the 
                        preparation of an environmental impact 
                        statement;
                            ``(ii) provide cooperating agencies with an 
                        opportunity to review and contribute to the 
                        preparation of the environmental impact 
                        statement and environmental assessment, as 
                        applicable, of the proposed action, except that 
                        the cooperating agency shall limit comments to 
                        issues within the special expertise or 
                        jurisdiction of the cooperating agency; and
                            ``(iii) subject to subsection (c), as soon 
                        as practicable and in consultation with the 
                        cooperating agencies, determine the range of 
                        alternatives to be considered for the proposed 
                        action.
            ``(4) Environmental documents.--In carrying out the NEPA 
        process for a proposed action, the lead agency shall prepare 
        not more than 1 of each type of document described in paragraph 
        (1) or (2) of subsection (d), as applicable--
                    ``(A) in consultation with cooperating agencies; 
                and
                    ``(B) for all applicable Federal agencies.
            ``(5) Prohibitions.--
                    ``(A) In general.--A cooperating agency may not 
                evaluate an alternative to the proposed action that has 
                not been determined to be within the range of 
                alternatives considered under paragraph (3)(B)(iii).
                    ``(B) Omission.--If a cooperating agency submits to 
                the lead agency an evaluation of an alternative that 
                does not meet the requirements of subsection (c), the 
                lead agency shall omit the alternative from the 
                environmental impact statement.
    ``(h) Reports.--
            ``(1) NEPA data.--
                    ``(A) In general.--The head of each Federal agency 
                that carries out the NEPA process shall carry out a 
                process to track, and annually submit to Congress a 
                report containing, the information described in 
                subparagraph (B).
                    ``(B) Information described.--The information 
                referred to in subparagraph (A) is, with respect to the 
                Federal agency issuing the report under that 
                subparagraph--
                            ``(i) the number of proposed actions for 
                        which a categorical exclusion was issued during 
                        the reporting period;
                            ``(ii) the length of time the Federal 
                        agency took to issue the categorical exclusions 
                        described in clause (i);
                            ``(iii) the number of proposed actions 
                        pending on the date on which the report is 
                        submitted for which the issuance of a 
                        categorical exclusion is pending;
                            ``(iv) the number of proposed actions for 
                        which an environmental assessment was issued 
                        during the reporting period;
                            ``(v) the length of time the Federal agency 
                        took to complete each environmental assessment 
                        described in clause (iv);
                            ``(vi) the number of proposed actions 
                        pending on the date on which the report is 
                        submitted for which an environmental assessment 
                        is being drafted;
                            ``(vii) the number of proposed actions for 
                        which an environmental impact statement was 
                        issued during the reporting period;
                            ``(viii) the length of time the Federal 
                        agency took to complete each environmental 
                        impact statement described in clause (vii); and
                            ``(ix) the number of proposed actions 
                        pending on the date on which the report is 
                        submitted for which an environmental impact 
                        statement is being drafted.
            ``(2) NEPA costs.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of this subsection, the Chair of the 
                Council on Environmental Quality and the Director of 
                the Office of Management and Budget shall jointly 
                develop a methodology to assess the comprehensive costs 
                of the NEPA process.
                    ``(B) Requirements.--The head of each Federal 
                agency that carries out the NEPA process shall--
                            ``(i) adopt the methodology developed under 
                        subparagraph (A); and
                            ``(ii) use the methodology developed under 
                        subparagraph (A) to annually submit to Congress 
                        a report describing--
                                    ``(I) the comprehensive cost of the 
                                NEPA process for each proposed action 
                                that was carried out within the 
                                reporting period; and
                                    ``(II) for a proposed action for 
                                which the head of the Federal agency is 
                                still completing the NEPA process at 
                                the time the report is submitted--
                                            ``(aa) the amount of money 
                                        expended to date to carry out 
                                        the NEPA process for the 
                                        proposed action; and
                                            ``(bb) an estimate of the 
                                        remaining costs before the NEPA 
                                        process for the proposed action 
                                        is complete.''.
    (c) Legal Reforms.--Section 105 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) (as amended by subsection 
(b)) is amended by adding at the end the following:
    ``(i) Judicial Review.--
            ``(1) Standing.--Notwithstanding any other provision of 
        law, a plaintiff may only bring a claim arising under Federal 
        law seeking judicial review of a portion of the NEPA process if 
        the plaintiff pleads facts that allege that the plaintiff has 
        personally suffered, or will likely personally suffer, a 
        direct, tangible harm as a result of the portion of the NEPA 
        process for which the plaintiff is seeking review.
            ``(2) Statute of limitations.--
                    ``(A) In general.--Notwithstanding any other 
                provision of law and except as provided in subparagraph 
                (B)(ii), a claim arising under Federal law seeking 
                judicial review of any portion of the NEPA process 
                shall be barred unless it is filed not later than the 
                earlier of--
                            ``(i) 150 days after the final agency 
                        action under the NEPA process has been taken; 
                        and
                            ``(ii) if applicable, an earlier date after 
                        which judicial review is barred that is 
                        specified in the Federal law pursuant to which 
                        the judicial review is allowed.
                    ``(B) New information.--
                            ``(i) Consideration.--A Federal agency 
                        shall consider for the purpose of a 
                        supplemental environmental impact statement new 
                        information received after the close of a 
                        comment period if the information satisfies the 
                        requirements for a supplemental environmental 
                        impact statement under the regulations of the 
                        Federal agency.
                            ``(ii) Statute of limitations based on new 
                        information.--If a supplemental environmental 
                        impact statement is required under the 
                        regulations of a Federal agency, a claim for 
                        judicial review of the supplemental 
                        environmental impact statement shall be barred 
                        unless it is filed not later than the earlier 
                        of--
                                    ``(I) 150 days after the 
                                publication of a notice in the Federal 
                                Register that the supplemental 
                                environmental impact statement is 
                                final; and
                                    ``(II) if applicable, an earlier 
                                date after which judicial review is 
                                barred that is specified in the Federal 
                                law pursuant to which the judicial 
                                review is allowed.
                    ``(C) Savings clause.--Nothing in this paragraph 
                creates a right to judicial review.
            ``(3) Remedies.--
                    ``(A) Preliminary injunctions and temporary 
                restraining orders.--
                            ``(i) In general.--Subject to clause (ii), 
                        in a motion for a temporary restraining order 
                        or preliminary injunction against a Federal 
                        agency or project sponsor in a claim arising 
                        under Federal law seeking judicial review of 
                        any portion of the NEPA process, the plaintiff 
                        shall establish by clear and convincing 
                        evidence that--
                                    ``(I) the plaintiff is likely to 
                                succeed on the merits;
                                    ``(II) the plaintiff is likely to 
                                suffer irreparable harm in the absence 
                                of the temporary restraining order or 
                                preliminary injunction, as applicable;
                                    ``(III) the balance of equities is 
                                tipped in the favor of the plaintiff; 
                                and
                                    ``(IV) the temporary restraining 
                                order or preliminary injunction is in 
                                the public interest.
                            ``(ii) Additional requirements.--A court 
                        may not grant a motion described in clause (i) 
                        unless the court--
                                    ``(I) makes a finding of 
                                extraordinary circumstances that 
                                warrant the granting of the motion;
                                    ``(II) considers the potential 
                                effects on public health, safety, and 
                                the environment, and the potential for 
                                significant negative effects on jobs 
                                resulting from granting the motion; and
                                    ``(III) notwithstanding any other 
                                provision of law, applies the 
                                requirements of Rule 65(c) of the 
                                Federal Rules of Civil Procedure.
                    ``(B) Permanent injunctions.--
                            ``(i) In general.--Subject to clause (ii), 
                        in a motion for a permanent injunction against 
                        a Federal agency or project sponsor a claim 
                        arising under Federal law seeking judicial 
                        review of any portion of the NEPA process, the 
                        plaintiff shall establish by clear and 
                        convincing evidence that--
                                    ``(I) the plaintiff has suffered an 
                                irreparable injury;
                                    ``(II) remedies available at law, 
                                including monetary damages, are 
                                inadequate to compensate for the 
                                injury;
                                    ``(III) considering the balance of 
                                hardship between the plaintiff and 
                                defendant, a remedy in equity is 
                                warranted;
                                    ``(IV) the public interest is not 
                                disserved by a permanent injunction; 
                                and
                                    ``(V) if the error or omission of a 
                                Federal agency in a statement required 
                                under this title is the grounds for 
                                which the plaintiff is seeking judicial 
                                review, the error or omission is likely 
                                to result in specific, irreparable 
                                damage to the environment.
                            ``(ii) Additional showing.--A court may not 
                        grant a motion described in clause (i) unless--
                                    ``(I) the court makes a finding 
                                that extraordinary circumstances exist 
                                that warrant the granting of the 
                                motion; and
                                    ``(II) the permanent injunction 
                                is--
                                            ``(aa) as narrowly tailored 
                                        as possible to correct the 
                                        injury; and
                                            ``(bb) the least intrusive 
                                        means necessary to correct the 
                                        injury.''.
    (d) Other Reforms.--Title I of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321 et seq.) is amended by inserting after 
section 105 (as amended by subsection (c)) the following:

``SEC. 106. EPA REVIEW.

    ``(a) Definition of Federal Agency.--In this section, the term 
`Federal agency' includes a State that has assumed the responsibility 
of a Federal agency under--
            ``(1) section 107; or
            ``(2) section 327 of title 23, United States Code.
    ``(b) EPA Comments.--The Administrator of the Environmental 
Protection Agency (referred to in this section as the `Administrator') 
may comment on a draft or final submission of an environmental impact 
statement from any Federal agency.
    ``(c) Technical Assistance.--The Administrator may, on request of a 
Federal agency preparing a draft or final environmental impact 
statement, provide technical assistance in the completion of that 
environmental impact statement.

``SEC. 107. PROJECT DELIVERY PROGRAMS.

    ``(a) Definition of Agency Program.--In this section, the term 
`agency program' means a project delivery program established by a 
Federal agency under subsection (b)(1).
    ``(b) Establishment.--
            ``(1) In general.--The head of each Federal agency, 
        including the Secretary of Transportation, shall carry out a 
        project delivery program.
            ``(2) Assumption of responsibility.--
                    ``(A) In general.--Subject to subparagraph (B), the 
                head of each Federal agency shall, on request of a 
                State, enter into a written agreement with the State, 
                which may be in the form of a memorandum of 
                understanding, in which the head of each Federal agency 
                may assign, and the State may assume, the 
                responsibilities of the head of the Federal agency 
                under this title with respect to 1 or more projects 
                within the State that are under the jurisdiction of the 
                Federal agency.
                    ``(B) Exception.--The head of a Federal agency 
                shall not enter into a written agreement under 
                subparagraph (A) if the head of the Federal agency 
                determines that the State is not in compliance with the 
                requirements described in subsection (c)(4).
                    ``(C) Additional responsibility.--If a State 
                assumes responsibility under subparagraph (A)--
                            ``(i) the head of the Federal agency may 
                        assign to the State, and the State may assume, 
                        all or part of the responsibilities of the head 
                        of the Federal agency for environmental review, 
                        consultation, or other action required under 
                        any Federal environmental law pertaining to the 
                        review or approval of a specific project;
                            ``(ii) at the request of the State, the 
                        head of the Federal agency may also assign to 
                        the State, and the State may assume, the 
                        responsibilities of the head of the Federal 
                        agency under this title with respect to 1 or 
                        more projects within the State that are under 
                        the jurisdiction of the Federal agency; but
                            ``(iii) the head of the Federal agency may 
                        not assign responsibility for any conformity 
                        determination required under section 176 of the 
                        Clean Air Act (42 U.S.C. 7506).
                    ``(D) Procedural and substantive requirements.--A 
                State shall assume responsibility under this section 
                subject to the same procedural and substantive 
                requirements as would apply if that responsibility were 
                carried out by the Federal agency.
                    ``(E) Federal responsibility.--Any responsibility 
                of a Federal agency not explicitly assumed by the State 
                by written agreement under subparagraph (A) shall 
                remain the responsibility of the Federal agency.
                    ``(F) No effect on authority.--Nothing in this 
                section preempts or interferes with any power, 
                jurisdiction, responsibility, or authority of an 
                agency, other than the Federal agency for which the 
                written agreement applies, under applicable law 
                (including regulations) with respect to a project.
                    ``(G) Preservation of flexibility.--The head of the 
                Federal agency may not require a State, as a condition 
                of participation in the agency program of the Federal 
                agency, to forego project delivery methods that are 
                otherwise permissible for projects under applicable 
                law.
                    ``(H) Legal fees.--A State assuming the 
                responsibilities of a Federal agency under this section 
                for a specific project may use funds awarded to the 
                State for that project for attorneys' fees directly 
                attributable to eligible activities associated with the 
                project.
    ``(c) State Participation.--
            ``(1) Participating states.--Except as provided in 
        subsection (b)(2)(B), all States are eligible to participate in 
        an agency program.
            ``(2) Application.--Not later than 270 days after the date 
        of enactment of this section, the head of each Federal agency 
        shall amend, as appropriate, regulations that establish 
        requirements relating to information required to be contained 
        in any application of a State to participate in the agency 
        program, including, at a minimum--
                    ``(A) the projects or classes of projects for which 
                the State anticipates exercising the authority that may 
                be granted under the agency program;
                    ``(B) verification of the financial resources 
                necessary to carry out the authority that may be 
                granted under the agency program; and
                    ``(C) evidence of the notice and solicitation of 
                public comment by the State relating to participation 
                of the State in the agency program, including copies of 
                comments received from that solicitation.
            ``(3) Public notice.--
                    ``(A) In general.--Each State that submits an 
                application under this subsection shall give notice of 
                the intent of the State to participate in an agency 
                program not later than 30 days before the date of 
                submission of the application.
                    ``(B) Method of notice and solicitation.--The State 
                shall provide notice and solicit public comment under 
                this paragraph by publishing the complete application 
                of the State in accordance with the appropriate public 
                notice law of the State.
            ``(4) Selection criteria.--The head of a Federal agency may 
        approve the application of a State under this section only if--
                    ``(A) the regulatory requirements under paragraph 
                (2) have been met;
                    ``(B) the head of the Federal agency determines 
                that the State has the capability, including financial 
                and personnel, to assume the responsibility; and
                    ``(C) the head of the State agency having primary 
                jurisdiction over the project enters into a written 
                agreement with the head of the Federal agency as 
                described in subsection (d).
            ``(5) Other federal agency views.--If a State applies to 
        assume a responsibility of the Federal agency that would have 
        required the head of the Federal agency to consult with the 
        head of another Federal agency, the head of the Federal agency 
        shall solicit the views of the head of the other Federal agency 
        before approving the application.
    ``(d) Written Agreement.--A written agreement under subsection 
(b)(2)(A) shall--
            ``(1) be executed by the Governor or the top-ranking 
        official in the State who is charged with responsibility for 
        the project;
            ``(2) be in such form as the head of the Federal agency may 
        prescribe;
            ``(3) provide that the State--
                    ``(A) agrees to assume all or part of the 
                responsibilities of the Federal agency described in 
                subparagraphs (A) and (C) of subsection (b)(2);
                    ``(B) expressly consents, on behalf of the State, 
                to accept the jurisdiction of the Federal courts for 
                the compliance, discharge, and enforcement of any 
                responsibility of the Federal agency assumed by the 
                State;
                    ``(C) certifies that State laws (including 
                regulations) are in effect that--
                            ``(i) authorize the State to take the 
                        actions necessary to carry out the 
                        responsibilities being assumed; and
                            ``(ii) are comparable to section 552 of 
                        title 5, including providing that any decision 
                        regarding the public availability of a document 
                        under those State laws is reviewable by a court 
                        of competent jurisdiction; and
                    ``(D) agrees to maintain the financial resources 
                necessary to carry out the responsibilities being 
                assumed;
            ``(4) require the State to provide to the head of the 
        Federal agency any information the head of the Federal agency 
        reasonably considers necessary to ensure that the State is 
        adequately carrying out the responsibilities assigned to the 
        State;
            ``(5) have a term of not more than 5 years; and
            ``(6) be renewable.
    ``(e) Jurisdiction.--
            ``(1) In general.--The United States district courts shall 
        have exclusive jurisdiction over any civil action against a 
        State for failure to carry out any responsibility of the State 
        under this section.
            ``(2) Legal standards and requirements.--A civil action 
        under paragraph (1) shall be governed by the legal standards 
        and requirements that would apply in such a civil action 
        against the head of a Federal agency had the head of the 
        Federal agency taken the actions in question.
            ``(3) Intervention.--The head of a Federal agency shall 
        have the right to intervene in any action described in 
        paragraph (1).
    ``(f) Effect of Assumption of Responsibility.--A State that assumes 
responsibility under subsection (b)(2) shall be solely responsible and 
solely liable for carrying out, in lieu of and without further approval 
of the head of the Federal agency, the responsibilities assumed under 
subsection (b)(2), until the agency program is terminated under 
subsection (k).
    ``(g) Limitations on Agreements.--Nothing in this section permits a 
State to assume any rulemaking authority of the head of a Federal 
agency under any Federal law.
    ``(h) Audits.--
            ``(1) In general.--To ensure compliance by a State with any 
        agreement of the State under subsection (d) (including 
        compliance by the State with all Federal laws for which 
        responsibility is assumed under subsection (b)(2)), for each 
        State participating in an agency program, the head of a Federal 
        agency shall--
                    ``(A) not later than 180 days after the date of 
                execution of the agreement, meet with the State to 
                review implementation of the agreement and discuss 
                plans for the first annual audit;
                    ``(B) conduct annual audits during each of the 
                first 4 years of State participation; and
                    ``(C) ensure that the time period for completing an 
                annual audit, from initiation to completion (including 
                public comment and responses to those comments), does 
                not exceed 180 days.
            ``(2) Public availability and comment.--
                    ``(A) In general.--An audit conducted under 
                paragraph (1) shall be provided to the public for 
                comment.
                    ``(B) Response.--Not later than 60 days after the 
                date on which the period for public comment ends, the 
                head of the Federal agency shall respond to public 
                comments received under subparagraph (A).
            ``(3) Audit team.--
                    ``(A) In general.--An audit conducted under 
                paragraph (1) shall be carried out by an audit team 
                determined by the head of the Federal agency, in 
                consultation with the State, in accordance with 
                subparagraph (B).
                    ``(B) Consultation.--Consultation with the State 
                under subparagraph (A) shall include a reasonable 
                opportunity for the State to review and provide 
                comments on the proposed members of the audit team.
    ``(i) Monitoring.--After the fourth year of the participation of a 
State in an agency program, the head of the Federal agency shall 
monitor compliance by the State with the written agreement, including 
the provision by the State of financial resources to carry out the 
written agreement.
    ``(j) Report to Congress.--The head of each Federal agency shall 
submit to Congress an annual report that describes the administration 
of the agency program.
    ``(k) Termination.--
            ``(1) Termination by federal agency.--The head of a Federal 
        agency may terminate the participation of any State in the 
        agency program of the Federal agency if--
                    ``(A) the head of the Federal agency determines 
                that the State is not adequately carrying out the 
                responsibilities assigned to the State;
                    ``(B) the head of the Federal agency provides to 
                the State--
                            ``(i) a notification of the determination 
                        of noncompliance;
                            ``(ii) a period of not less than 120 days 
                        to take such corrective action as the head of 
                        the Federal agency determines to be necessary 
                        to comply with the applicable agreement; and
                            ``(iii) on request of the Governor of the 
                        State, a detailed description of each 
                        responsibility in need of corrective action 
                        regarding an inadequacy identified under 
                        subparagraph (A); and
                    ``(C) the State, after the notification and period 
                provided under subparagraph (B), fails to take 
                satisfactory corrective action, as determined by the 
                head of the Federal agency.
            ``(2) Termination by the state.--A State may terminate the 
        participation of the State in an agency program at any time by 
        providing to the head of the applicable Federal agency a notice 
        by not later than the date that is 90 days before the date of 
        termination, and subject to such terms and conditions as the 
        head of the Federal agency may provide.
    ``(l) Capacity Building.--The head of a Federal agency, in 
cooperation with representatives of State officials, may carry out 
education, training, peer-exchange, and other initiatives as 
appropriate--
            ``(1) to assist States in developing the capacity to 
        participate in the agency program of the Federal agency; and
            ``(2) to promote information sharing and collaboration 
        among States that are participating in the agency program of 
        the Federal agency.
    ``(m) Relationship to Locally Administered Projects.--A State 
granted authority under an agency program may, as appropriate and at 
the request of a local government--
            ``(1) exercise that authority on behalf of the local 
        government for a locally administered project; or
            ``(2) provide guidance and training on consolidating and 
        minimizing the documentation and environmental analyses 
        necessary for sponsors of a locally administered project to 
        comply with this title and any comparable requirements under 
        State law.''.
    (e) Prohibition on Guidance.--No Federal agency, including the 
Council on Environmental Quality, may reissue the final guidance of the 
Council on Environmental Quality entitled ``Final Guidance for Federal 
Departments and Agencies on Consideration of Greenhouse Gas Emissions 
and the Effects of Climate Change in National Environmental Policy Act 
Reviews'' (81 Fed. Reg. 51866 (August 5, 2016)) or substantially 
similar guidance unless authorized by an Act of Congress.
    (f) Definitions.--Title I of the National Environmental Policy Act 
of 1969 (42 U.S.C. 4331 et seq.) (as amended by subsection (a)(1)) is 
amended by adding at the end the following:

``SEC. 109. DEFINITIONS.

    ``In this title:
            ``(1) Environmental assessment.--The term `environmental 
        assessment' has the meaning given the term in section 1508.9 of 
        title 40, Code of Federal Regulations (or a successor 
        regulation).
            ``(2) Environmental impact statement.--The term 
        `environmental impact statement' means a detailed statement 
        required under section 102(2)(C).
            ``(3) NEPA process.--
                    ``(A) In general.--The term `NEPA process' means 
                the entirety of every process, analysis, or other 
                measure, including an environmental impact statement, 
                required to be carried out by a Federal agency under 
                this title before the agency undertakes a proposed 
                action.
                    ``(B) Period.--For purposes of subparagraph (A), 
                the NEPA process--
                            ``(i) begins on the date on which the head 
                        of a Federal agency receives an application for 
                        a proposed action from a project sponsor; and
                            ``(ii) ends on the date on which the 
                        Federal agency issues, with respect to the 
                        proposed action--
                                    ``(I) a record of decision, 
                                including, if necessary, a revised 
                                record of decision;
                                    ``(II) a finding of no significant 
                                impact; or
                                    ``(III) a categorical exclusion 
                                under this title.
            ``(4) Project sponsor.--The term `project sponsor' means a 
        Federal agency or other entity, including a private or public-
        private entity, that seeks approval of a proposed action.''.
    (g) Conforming Amendments.--
            (1) Policy review.--Section 309 of the Clean Air Act (42 
        U.S.C. 7609) is repealed.
            (2) Surface transportation project delivery program.--
        Section 327 of title 23, United States Code, is amended--
                    (A) in subsection (a)(1), by striking ``The 
                Secretary'' and inserting ``Subject to subsection (m), 
                the Secretary''; and
                    (B) by adding at the end the following:
    ``(m) Sunset.--
            ``(1) In general.--Except as provided under paragraph (2), 
        the authority provided by this section terminates on the date 
        of enactment of this subsection.
            ``(2) Existing agreements.--Subject to the requirements of 
        this section, the Secretary may continue to enforce any 
        agreement entered into under this section before the date of 
        enactment of this subsection.''.

SEC. 3. ATTORNEY FEES IN ENVIRONMENTAL LITIGATION.

    (a) Administrative Procedure.--Section 504(b)(1) of title 5, United 
States Code, is amended--
            (1) in subparagraph (E), by striking ``and'' at the end;
            (2) in subparagraph (F), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(G) `special factor' does not include knowledge, 
        expertise, or skill in environmental litigation.''.
    (b) United States as Party.--Section 2412(d)(2) of title 28, United 
States Code, is amended--
            (1) in subparagraph (H), by striking ``and'' at the end;
            (2) in subparagraph (I), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(J) `special factor' does not include knowledge, 
                expertise, or skill in environmental litigation.''.
                                 <all>