[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5636-S5637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2249. Mr. LEE submitted an amendment intended to be proposed to 
amendment SA 2137 proposed by Mr. Schumer (for Ms. Sinema (for herself, 
Mr. Portman, Mr. Manchin, Mr. Cassidy, Mrs. Shaheen, Ms. Collins, Mr. 
Tester, Ms. Murkowski, Mr. Warner, and Mr. Romney)) to the bill H.R. 
3684, to authorize funds for Federal-aid highways, highway safety 
programs, and transit programs, and for other purposes; which was 
ordered to lie on the table; as follows:

        At the end of the amendment, add the following:

 DIVISION __--LEGAL REFORMS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT

     SEC. __. 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--

[[Page S5637]]

       ``(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.''.
                                 ______