[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.''.
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