[Congressional Record Volume 167, Number 137 (Monday, August 2, 2021)]
[Senate]
[Pages S5665-S5669]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2267. 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, add the following:

      DIVISION __--NATIONAL ENVIRONMENTAL POLICY ACT MODIFICATIONS

     SEC. ___. NATIONAL ENVIRONMENTAL POLICY ACT MODIFICATIONS.

       (a) National Environmental Policy Act Modifications.--
       (1) Applicable timelines.--Title I of the National 
     Environmental Policy Act of 1969 is amended--
       (A) by redesignating section 105 (42 U.S.C. 4335) as 
     section 108; and
       (B) by inserting after section 104 (42 U.S.C. 4334) the 
     following:

     ``SEC. 105. PROCESS REQUIREMENTS.

       ``(a) Definitions.--In this section:
       ``(1) Federal agency.--The term `Federal agency' includes a 
     State that has assumed the responsibility of a Federal agency 
     under--
       ``(A) section 107; or
       ``(B) 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 the 
     responsibility of a Federal agency under--
       ``(A) section 107; or
       ``(B) section 327 of title 23, United States Code.
       ``(b) Applicable Timelines.--
       ``(1) NEPA process.--
       ``(A) In general.--The head of a Federal agency shall 
     complete the NEPA process for a proposed action of the 
     Federal agency, as described in section 109(3)(B)(ii), not 
     later than 2 years after the date described in section 
     109(3)(B)(i).
       ``(B) Environmental documents.--Within the period described 
     in subparagraph (A), not later than 1 year after the date 
     described in section 109(3)(B)(i), the head of the Federal 
     agency shall, with respect to the proposed action--
       ``(i) issue--

       ``(I) a finding that a categorical exclusion applies to the 
     proposed action; or
       ``(II) a finding of no significant impact; or

       ``(ii) publish a notice of intent to prepare an 
     environmental impact statement in the Federal Register.
       ``(C) Environmental impact statement.--If the head of a 
     Federal agency publishes a notice of intent described in 
     subparagraph (B)(ii), within the period described in 
     subparagraph (A) and not later than 1 year after the date on 
     which the head of the Federal agency publishes the notice of 
     intent, the head of the Federal agency shall complete the 
     environmental impact statement and, if necessary, any 
     supplemental environmental impact statement for the proposed 
     action.
       ``(D) Penalties.--
       ``(i) Definitions.--In this subparagraph:

       ``(I) Director.--The term `Director' means the Director of 
     the Office of Management and Budget.
       ``(II) Federal agency.--The term `Federal agency' does not 
     include a State.
       ``(III) Final nepa compliance date.--The term `final NEPA 
     compliance date', with respect to a proposed action, means 
     the date by which the head of a Federal agency is required to 
     complete the NEPA process under subparagraph (A).
       ``(IV) Head of a federal agency.--The term `head of a 
     Federal agency' does not include the governor or head of a 
     State agency of a State.
       ``(V) Initial eis compliance date.--The term `initial EIS 
     compliance date', with respect to a proposed action for which 
     a Federal agency published a notice of intent described in 
     subparagraph (B)(ii), means the date by which an 
     environmental impact statement for that proposed action is 
     required to be completed under subparagraph (C).
       ``(VI) Initial nepa compliance date.--The term `initial 
     NEPA compliance date', with respect to a proposed action, 
     means the date by which the head of a Federal agency is 
     required to issue or publish a document described in 
     subparagraph (B) for that proposed action under that 
     subparagraph.
       ``(VII) Initial noncompliance determination.--The term 
     `initial noncompliance determination' means a determination 
     under clause (ii)(I)(bb) that the head of a Federal agency 
     has not complied with the requirements of subparagraph (A), 
     (B), or (C).

       ``(ii) Initial noncompliance.--

       ``(I) Determination.--

       ``(aa) Notification.--As soon as practicable after the date 
     described in section 109(3)(B)(i) for a proposed action of a 
     Federal agency, the head of the Federal agency shall notify 
     the Director that the head of the Federal agency is beginning 
     the NEPA process for that proposed action.
       ``(bb) Determinations of compliance.--
       ``(AA) Initial determination.--As soon as practicable after 
     the initial NEPA compliance date for a proposed action, the 
     Director shall determine whether, as of the initial NEPA 
     compliance date, the head of the Federal agency has complied 
     with subparagraph (B) for that proposed action.
       ``(BB) Environmental impact statement.--With respect to a 
     proposed action of a Federal agency in which the head of the 
     Federal agency publishes a notice of intent described in 
     subparagraph (B)(ii), as soon as practicable after the 
     initial EIS compliance date for a proposed action, the 
     Director shall determine whether, as of the initial EIS 
     compliance date, the head of the Federal agency has complied 
     with subparagraph (C) for that proposed action.
       ``(CC) Completion of nepa process.--As soon as practicable 
     after the final NEPA compliance date for a proposed action, 
     the Director shall determine whether, as of the final NEPA 
     compliance date, the head of the Federal agency has complied 
     with subparagraph (A) for that proposed action.

       ``(II) Identification; penalty; notification.--If the 
     Director makes an initial noncompliance determination for a 
     proposed action--

       ``(aa) the Director shall identify the account for the 
     salaries and expenses of the office of the head of the 
     Federal agency, or an equivalent account;
       ``(bb) beginning on the day after the date on which the 
     Director makes the initial noncompliance determination, the 
     amount that the head of the Federal agency may obligate from 
     the account identified under item (aa) for the fiscal year 
     during which the determination is made shall be reduced by 
     0.5 percent from the amount initially made available for the 
     account for that fiscal year; and
       ``(cc) the Director shall notify the head of the Federal 
     agency of--
       ``(AA) the initial noncompliance determination;
       ``(BB) the account identified under item (aa); and
       ``(CC) the reduction under item (bb).
       ``(iii) Continued noncompliance.--

       ``(I) Determination.--Every 90 days after the date of an 
     initial noncompliance determination, the Director shall 
     determine whether the head of the Federal agency has complied 
     with the applicable requirements of subparagraphs (A) through 
     (C) for the proposed action, until the date on which the 
     Director determines that the head of the Federal agency has 
     completed the NEPA process for the proposed action.
       ``(II) Penalty; notification.--For each determination made 
     by the Director under subclause (I) that the head of a 
     Federal agency has not complied with a requirement of 
     subparagraph (A), (B), or (C) for a proposed action--

       ``(aa) the amount that the head of the Federal agency may 
     obligate from the account identified under clause 
     (ii)(II)(aa) for the fiscal year during which the most recent 
     determination under subclause (I) is made shall be reduced by 
     0.5 percent from the amount initially made available for the 
     account for that fiscal year; and
       ``(bb) the Director shall notify the head of the Federal 
     agency of--
       ``(AA) the determination under subclause (I); and
       ``(BB) the reduction under item (aa).
       ``(iv) Requirements.--

[[Page S5666]]

       ``(I) Amounts not restored.--A reduction in the amount that 
     the head of a Federal agency may obligate under clause 
     (ii)(II)(bb) or (iii)(II)(aa) during a fiscal year shall not 
     be restored for that fiscal year, without regard to whether 
     the head of a Federal agency completes the NEPA process for 
     the proposed action with respect to which the Director made 
     an initial noncompliance determination or a determination 
     under clause (iii)(I).
       ``(II) Required timelines.--The violation of subparagraph 
     (B) or (C), and any action carried out to remediate or 
     otherwise address the violation, shall not affect any other 
     applicable compliance date under subparagraph (A), (B), or 
     (C).

       ``(E) 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--
       ``(i) 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
       ``(ii) if the head of the Federal agency determines under 
     clause (i) 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.
       ``(2) Authorizations and permits.--
       ``(A) In general.--Not later than 90 days after the date 
     described in section 109(3)(B)(ii), the head of a Federal 
     agency shall issue--
       ``(i) any necessary permit or authorization to carry out 
     the proposed action; or
       ``(ii) a denial of the permit or authorization necessary to 
     carry out the proposed action.
       ``(B) Effect of failure to issue authorization or permit.--
     If a permit or authorization described in subparagraph (A) is 
     not issued or denied within the period described in that 
     subparagraph, the permit or authorization shall be considered 
     to be approved.
       ``(C) Denial of permit or authorization.--
       ``(i) In general.--If a permit or authorization described 
     in subparagraph (A) is denied, the head of the Federal agency 
     shall describe to the project sponsor--

       ``(I) the basis of the denial; and
       ``(II) recommendations for the project sponsor with respect 
     to how to address the reasons for the denial.

       ``(ii) Recommended changes.--If the project sponsor carries 
     out the recommendations of the head of the Federal agency 
     under clause (i)(II) and notifies the head of the Federal 
     agency that the recommendations have been carried out, the 
     head of the Federal agency--

       ``(I) shall decide whether to issue the permit or 
     authorization described in subparagraph (A) not later than 90 
     days after date on which the project sponsor submitted the 
     notification; and
       ``(II) shall not carry out the NEPA process with respect to 
     the proposed action again.''.

       (2) Agency process reforms.--Section 105 of the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (as 
     added by paragraph (1)(B)) is amended by adding at the end 
     the following:
       ``(c) Prohibitions.--In carrying out the NEPA process, the 
     head of a Federal agency may not--
       ``(1) consider whether a proposed action or an alternative 
     to the proposed action considered by the head of the Federal 
     agency, including the design, environmental impact, 
     mitigation measures, or adaptation measures of the proposed 
     action or alternative to the proposed action, has an effect 
     on climate change;
       ``(2) with respect to a proposed action or an alternative 
     to the proposed action considered by the head of the Federal 
     agency, consider the effects of the emission of greenhouse 
     gases on climate change;
       ``(3) consider an alternative to the proposed action if the 
     proposed action is not technically or economically feasible 
     to the project sponsor; or
       ``(4) consider an alternative to the proposed action that 
     is not within the jurisdiction of the Federal agency.
       ``(d) 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.
       ``(e) 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.
       ``(f) Reuse of Work; Documents Prepared by Qualified 3rd 
     Parties.--
       ``(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

[[Page S5667]]

     findings that served as the basis of the denial.
       ``(g) 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 (c), 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 (d), 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 (c), the lead agency 
     shall omit the alternative from the environmental impact 
     statement.
       ``(h) 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.''.
       (3) Legal reforms.--Section 105 of the National 
     Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (as 
     amended by paragraph (2)) is amended by adding at the end the 
     following:
       ``(i) 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

[[Page S5668]]

     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.''.
       (4) Other reforms.--Title I of the National Environmental 
     Policy Act of 1969 (42 U.S.C. 4321 et seq.) is amended by 
     inserting after section 105 (as amended by paragraph (3)) the 
     following:

     ``SEC. 106. EPA REVIEW.

       ``(a) Definition of Federal Agency.--In this section, the 
     term `Federal agency' includes a State that has assumed the 
     responsibility of a Federal agency under--
       ``(1) section 107; or
       ``(2) section 327 of title 23, United States Code.
       ``(b) EPA Comments.--The Administrator of the Environmental 
     Protection Agency (referred to in this section as the 
     `Administrator') may comment on a draft or final submission 
     of an environmental impact statement from any Federal agency.
       ``(c) Technical Assistance.--The Administrator may, on 
     request of a Federal agency preparing a draft or final 
     environmental impact statement, provide technical assistance 
     in the completion of that environmental impact statement.

     ``SEC. 107. PROJECT DELIVERY PROGRAMS.

       ``(a) Definition of Agency Program.--In this section, the 
     term `agency program' means a project delivery program 
     established by a Federal agency under subsection (b)(1).
       ``(b) Establishment.--
       ``(1) In general.--The head of each Federal agency, 
     including the Secretary of Transportation, shall carry out a 
     project delivery program.
       ``(2) Assumption of responsibility.--
       ``(A) In general.--Subject to subparagraph (B), the head of 
     each Federal agency shall, on request of a State, enter into 
     a written agreement with the State, which may be in the form 
     of a memorandum of understanding, in which the head of each 
     Federal agency may assign, and the State may assume, the 
     responsibilities of the head of the Federal agency under this 
     title with respect to 1 or more projects within the State 
     that are under the jurisdiction of the Federal agency.
       ``(B) Exception.--The head of a Federal agency shall not 
     enter into a written agreement under subparagraph (A) if the 
     head of the Federal agency determines that the State is not 
     in compliance with the requirements described in subsection 
     (c)(4).
       ``(C) Additional responsibility.--If a State assumes 
     responsibility under subparagraph (A)--
       ``(i) the head of the Federal agency may assign to the 
     State, and the State may assume, all or part of the 
     responsibilities of the head of the Federal agency for 
     environmental review, consultation, or other action required 
     under any Federal environmental law pertaining to the review 
     or approval of a specific project;
       ``(ii) at the request of the State, the head of the Federal 
     agency may also assign to the State, and the State may 
     assume, the responsibilities of the head of the Federal 
     agency under this title with respect to 1 or more projects 
     within the State that are under the jurisdiction of the 
     Federal agency; but
       ``(iii) the head of the Federal agency may not assign 
     responsibility for any conformity determination required 
     under section 176 of the Clean Air Act (42 U.S.C. 7506).
       ``(D) Procedural and substantive requirements.--A State 
     shall assume responsibility under this section subject to the 
     same procedural and substantive requirements as would apply 
     if that responsibility were carried out by the Federal 
     agency.
       ``(E) Federal responsibility.--Any responsibility of a 
     Federal agency not explicitly assumed by the State by written 
     agreement under subparagraph (A) shall remain the 
     responsibility of the Federal agency.
       ``(F) No effect on authority.--Nothing in this section 
     preempts or interferes with any power, jurisdiction, 
     responsibility, or authority of an agency, other than the 
     Federal agency for which the written agreement applies, under 
     applicable law (including regulations) with respect to a 
     project.
       ``(G) Preservation of flexibility.--The head of the Federal 
     agency may not require a State, as a condition of 
     participation in the agency program of the Federal agency, to 
     forego project delivery methods that are otherwise 
     permissible for projects under applicable law.
       ``(H) Legal fees.--A State assuming the responsibilities of 
     a Federal agency under this section for a specific project 
     may use funds awarded to the State for that project for 
     attorneys' fees directly attributable to eligible activities 
     associated with the project.
       ``(c) State Participation.--
       ``(1) Participating states.--Except as provided in 
     subsection (b)(2)(B), all States are eligible to participate 
     in an agency program.
       ``(2) Application.--Not later than 270 days after the date 
     of enactment of this section, the head of each Federal agency 
     shall amend, as appropriate, regulations that establish 
     requirements relating to information required to be contained 
     in any application of a State to participate in the agency 
     program, including, at a minimum--
       ``(A) the projects or classes of projects for which the 
     State anticipates exercising the authority that may be 
     granted under the agency program;
       ``(B) verification of the financial resources necessary to 
     carry out the authority that may be granted under the agency 
     program; and
       ``(C) evidence of the notice and solicitation of public 
     comment by the State relating to participation of the State 
     in the agency program, including copies of comments received 
     from that solicitation.
       ``(3) Public notice.--
       ``(A) In general.--Each State that submits an application 
     under this subsection shall give notice of the intent of the 
     State to participate in an agency program not later than 30 
     days before the date of submission of the application.
       ``(B) Method of notice and solicitation.--The State shall 
     provide notice and solicit public comment under this 
     paragraph by publishing the complete application of the State 
     in accordance with the appropriate public notice law of the 
     State.
       ``(4) Selection criteria.--The head of a Federal agency may 
     approve the application of a State under this section only 
     if--
       ``(A) the regulatory requirements under paragraph (2) have 
     been met;
       ``(B) the head of the Federal agency determines that the 
     State has the capability, including financial and personnel, 
     to assume the responsibility; and
       ``(C) the head of the State agency having primary 
     jurisdiction over the project enters into a written agreement 
     with the head of the Federal agency as described in 
     subsection (d).
       ``(5) Other federal agency views.--If a State applies to 
     assume a responsibility of the Federal agency that would have 
     required the head of the Federal agency to consult with the 
     head of another Federal agency, the head of the Federal 
     agency shall solicit the views of the head of the other 
     Federal agency before approving the application.
       ``(d) Written Agreement.--A written agreement under 
     subsection (b)(2)(A) shall--
       ``(1) be executed by the Governor or the top-ranking 
     official in the State who is charged with responsibility for 
     the project;
       ``(2) be in such form as the head of the Federal agency may 
     prescribe;
       ``(3) provide that the State--
       ``(A) agrees to assume all or part of the responsibilities 
     of the Federal agency described in subparagraphs (A) and (C) 
     of subsection (b)(2);
       ``(B) expressly consents, on behalf of the State, to accept 
     the jurisdiction of the Federal courts for the compliance, 
     discharge, and enforcement of any responsibility of the 
     Federal agency assumed by the State;
       ``(C) certifies that State laws (including regulations) are 
     in effect that--
       ``(i) authorize the State to take the actions necessary to 
     carry out the responsibilities being assumed; and
       ``(ii) are comparable to section 552 of title 5, including 
     providing that any decision regarding the public availability 
     of a document under those State laws is reviewable by a court 
     of competent jurisdiction; and
       ``(D) agrees to maintain the financial resources necessary 
     to carry out the responsibilities being assumed;
       ``(4) require the State to provide to the head of the 
     Federal agency any information the head of the Federal agency 
     reasonably considers necessary to ensure that the State is 
     adequately carrying out the responsibilities assigned to the 
     State;
       ``(5) have a term of not more than 5 years; and
       ``(6) be renewable.
       ``(e) Jurisdiction.--
       ``(1) In general.--The United States district courts shall 
     have exclusive jurisdiction over any civil action against a 
     State for failure to carry out any responsibility of the 
     State under this section.
       ``(2) Legal standards and requirements.--A civil action 
     under paragraph (1) shall be governed by the legal standards 
     and requirements that would apply in such a civil action 
     against the head of a Federal agency had the head of the 
     Federal agency taken the actions in question.
       ``(3) Intervention.--The head of a Federal agency shall 
     have the right to intervene in any action described in 
     paragraph (1).
       ``(f) Effect of Assumption of Responsibility.--A State that 
     assumes responsibility under subsection (b)(2) shall be 
     solely responsible and solely liable for carrying out, in 
     lieu of and without further approval of the head of the 
     Federal agency, the responsibilities assumed under subsection 
     (b)(2), until the agency program is terminated under 
     subsection (k).
       ``(g) Limitations on Agreements.--Nothing in this section 
     permits a State to assume any rulemaking authority of the 
     head of a Federal agency under any Federal law.
       ``(h) Audits.--
       ``(1) In general.--To ensure compliance by a State with any 
     agreement of the State under subsection (d) (including 
     compliance by the State with all Federal laws for which 
     responsibility is assumed under subsection (b)(2)), for each 
     State participating in an agency program, the head of a 
     Federal agency shall--
       ``(A) not later than 180 days after the date of execution 
     of the agreement, meet with the

[[Page S5669]]

     State to review implementation of the agreement and discuss 
     plans for the first annual audit;
       ``(B) conduct annual audits during each of the first 4 
     years of State participation; and
       ``(C) ensure that the time period for completing an annual 
     audit, from initiation to completion (including public 
     comment and responses to those comments), does not exceed 180 
     days.
       ``(2) Public availability and comment.--
       ``(A) In general.--An audit conducted under paragraph (1) 
     shall be provided to the public for comment.
       ``(B) Response.--Not later than 60 days after the date on 
     which the period for public comment ends, the head of the 
     Federal agency shall respond to public comments received 
     under subparagraph (A).
       ``(3) Audit team.--
       ``(A) In general.--An audit conducted under paragraph (1) 
     shall be carried out by an audit team determined by the head 
     of the Federal agency, in consultation with the State, in 
     accordance with subparagraph (B).
       ``(B) Consultation.--Consultation with the State under 
     subparagraph (A) shall include a reasonable opportunity for 
     the State to review and provide comments on the proposed 
     members of the audit team.
       ``(i) Monitoring.--After the fourth year of the 
     participation of a State in an agency program, the head of 
     the Federal agency shall monitor compliance by the State with 
     the written agreement, including the provision by the State 
     of financial resources to carry out the written agreement.
       ``(j) Report to Congress.--The head of each Federal agency 
     shall submit to Congress an annual report that describes the 
     administration of the agency program.
       ``(k) Termination.--
       ``(1) Termination by federal agency.--The head of a Federal 
     agency may terminate the participation of any State in the 
     agency program of the Federal agency if--
       ``(A) the head of the Federal agency determines that the 
     State is not adequately carrying out the responsibilities 
     assigned to the State;
       ``(B) the head of the Federal agency provides to the 
     State--
       ``(i) a notification of the determination of noncompliance;
       ``(ii) a period of not less than 120 days to take such 
     corrective action as the head of the Federal agency 
     determines to be necessary to comply with the applicable 
     agreement; and
       ``(iii) on request of the Governor of the State, a detailed 
     description of each responsibility in need of corrective 
     action regarding an inadequacy identified under subparagraph 
     (A); and
       ``(C) the State, after the notification and period provided 
     under subparagraph (B), fails to take satisfactory corrective 
     action, as determined by the head of the Federal agency.
       ``(2) Termination by the state.--A State may terminate the 
     participation of the State in an agency program at any time 
     by providing to the head of the applicable Federal agency a 
     notice by not later than the date that is 90 days before the 
     date of termination, and subject to such terms and conditions 
     as the head of the Federal agency may provide.
       ``(l) Capacity Building.--The head of a Federal agency, in 
     cooperation with representatives of State officials, may 
     carry out education, training, peer-exchange, and other 
     initiatives as appropriate--
       ``(1) to assist States in developing the capacity to 
     participate in the agency program of the Federal agency; and
       ``(2) to promote information sharing and collaboration 
     among States that are participating in the agency program of 
     the Federal agency.
       ``(m) Relationship to Locally Administered Projects.--A 
     State granted authority under an agency program may, as 
     appropriate and at the request of a local government--
       ``(1) exercise that authority on behalf of the local 
     government for a locally administered project; or
       ``(2) provide guidance and training on consolidating and 
     minimizing the documentation and environmental analyses 
     necessary for sponsors of a locally administered project to 
     comply with this title and any comparable requirements under 
     State law.''.
       (5) Prohibition on guidance.--No Federal agency, including 
     the Council on Environmental Quality, may reissue the final 
     guidance of the Council on Environmental Quality entitled 
     ``Final Guidance for Federal Departments and Agencies on 
     Consideration of Greenhouse Gas Emissions and the Effects of 
     Climate Change in National Environmental Policy Act Reviews'' 
     (81 Fed. Reg. 51866 (August 5, 2016)) or substantially 
     similar guidance unless authorized by an Act of Congress.
       (6) Definitions.--Title I of the National Environmental 
     Policy Act of 1969 (42 U.S.C. 4331 et seq.) (as amended by 
     paragraph (1)(A)) is amended by adding at the end the 
     following:

     ``SEC. 109. DEFINITIONS.

       ``In this title:
       ``(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) 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.''.
       (7) Conforming amendments.--
       (A) Policy review.--Section 309 of the Clean Air Act (42 
     U.S.C. 7609) is repealed.
       (B) Surface transportation project delivery program.--
     Section 327 of title 23, United States Code, is amended--
       (i) in subsection (a)(1), by striking ``The Secretary'' and 
     inserting ``Subject to subsection (m), the Secretary''; and
       (ii) by adding at the end the following:
       ``(m) Sunset.--
       ``(1) In general.--Except as provided under paragraph (2), 
     the authority provided by this section terminates on the date 
     of enactment of this subsection.
       ``(2) Existing agreements.--Subject to the requirements of 
     this section, the Secretary may continue to enforce any 
     agreement entered into under this section before the date of 
     enactment of this subsection.''.
       (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.''.
                                 ______