[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.''.
______