[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5639-S5641]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2252. 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 __--AGENCY PROCESS REFORMS UNDER THE NATIONAL ENVIRONMENTAL 
                               POLICY ACT

     SEC. __. 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 1508.1 
     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--

[[Page S5640]]

       ``(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

[[Page S5641]]

     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.''.
                                 ______