[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 718 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                 S. 718

To amend the National Environmental Policy Act of 1969 to reform agency 
             process requirements, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 11, 2021

   Mr. Lee (for himself, Mr. Barrasso, 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 reform agency 
             process requirements, 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 Agency Process Accountability 
Act''.

SEC. 2. AGENCY PROCESS REFORMS UNDER NEPA.

    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. AGENCY PROCESS REFORMS.

    ``(a) Definitions.--In this section:
            ``(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) Federal agency.--The term `Federal agency' includes a 
        State that has assumed responsibility under section 327 of 
        title 23, United States Code.
            ``(4) 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.
            ``(5) 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.
            ``(6) 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) Prohibitions.--In carrying out the NEPA process, the head of 
a Federal agency may not--
            ``(1) consider an alternative to the proposed action if the 
        proposed action is not technically or economically feasible to 
        the project sponsor; or
            ``(2) consider an alternative to the proposed action that 
        is not within the jurisdiction of the Federal agency.
    ``(c) 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.
    ``(d) 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.
    ``(e) Reuse of Work; Documents Prepared by Qualified 3rd Parties; 
Unexpected Circumstances.--
            ``(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.
            ``(4) 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--
                    ``(A) 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
                    ``(B) if the head of the Federal agency determines 
                under subparagraph (A) 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.
    ``(f) 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 (b), 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 (c), 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 (b), the 
                lead agency shall omit the alternative from the 
                environmental impact statement.
    ``(g) 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.''.
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