[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 716 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                 S. 716

 To amend the National Environmental Policy Act of 1969 to provide for 
                 legal reform, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 11, 2021

    Mr. Lee introduced the following bill; which was read twice and 
       referred to the Committee on Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
 To amend the National Environmental Policy Act of 1969 to provide for 
                 legal reform, 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 ``NEPA Legal Reform Act''.

SEC. 2. LEGAL REFORMS UNDER NEPA.

    (a) In General.--Title I of the National Environmental Policy Act 
of 1969 is amended--
            (1) by redesignating section 105 (42 U.S.C. 4335) as 
        section 106; and
            (2) by inserting after section 104 (42 U.S.C. 4334) the 
        following:

``SEC. 105. LEGAL REFORM.

    ``(a) Definitions.--In this section:
            ``(1) Federal agency.--The term `Federal agency' includes a 
        State that has assumed responsibility under 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 responsibility under 
        section 327 of title 23, United States Code.
            ``(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.
    ``(b) 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.''.
    (b) Attorney Fees in Environmental Litigation.--
            (1) Administrative procedure.--Section 504(b)(1) of title 
        5, United States Code, is amended--
                    (A) in subparagraph (E), by striking ``and'' at the 
                end;
                    (B) in subparagraph (F), by striking the period at 
                the end and inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(G) `special factor' does not include knowledge, 
        expertise, or skill in environmental litigation.''.
            (2) United states as party.--Section 2412(d)(2) of title 
        28, United States Code, is amended--
                    (A) in subparagraph (H), by striking ``and'' at the 
                end;
                    (B) in subparagraph (I), by striking the period at 
                the end and inserting ``; and''; and
                    (C) by adding at the end the following:
                    ``(J) `special factor' does not include knowledge, 
                expertise, or skill in environmental litigation.''.
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