[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2515 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 2515
To amend the National Environmental Policy Act of 1969 to clarify
ambiguous provisions, align the Act with relevant case law, reflect
modern technologies, optimize interagency coordination, and facilitate
a more efficient, effective, and timely environmental review process.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 14, 2021
Mr. Graves of Louisiana (for himself, Mr. McCarthy, Mr. Scalise, Mr.
Graves of Missouri, Mr. Westerman, Ms. Cheney, Ms. Granger, Mrs.
Rodgers of Washington, Mr. Cole, Mr. Lucas, Mr. Comer, Mr. Thompson of
Pennsylvania, Mr. Luetkemeyer, Mr. Rodney Davis of Illinois, Mr.
Crawford, Mr. Van Drew, Mr. LaMalfa, Mr. Bost, Mr. Babin, Mr. Weber of
Texas, Mr. Fulcher, Mr. Balderson, and Mr. Budd) introduced the
following bill; which was referred to the Committee on Natural
Resources
_______________________________________________________________________
A BILL
To amend the National Environmental Policy Act of 1969 to clarify
ambiguous provisions, align the Act with relevant case law, reflect
modern technologies, optimize interagency coordination, and facilitate
a more efficient, effective, and timely environmental review process.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as ``BUILDER Act of 2021'' or the ``Building
United States Infrastructure through Limited Delays and Efficient
Reviews Act of 2021''.
SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.
(a) Paragraph (2) of Section 102.--Section 102(2) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is amended--
(1) in subparagraph (A), by striking ``insure'' and
inserting ``ensure'';
(2) in subparagraph (B), by striking ``insure'' and
inserting ``ensure'';
(3) in subparagraph (C)--
(A) by inserting ``consistent with the provisions
of this Act and except as provided by other provisions
of law,'' before ``include in every'';
(B) by striking clauses (i) through (v) and
inserting the following:
``(i) reasonably foreseeable environmental effects
with a reasonably close causal relationship to the
proposed agency action;
``(ii) any reasonably foreseeable adverse
environmental effects which cannot be avoided should
the proposal be implemented;
``(iii) a reasonable number of alternatives to the
proposed agency action that are technically and
economically feasible, are within the jurisdiction of
the agency, meet the purpose and need of the proposed
agency action, and, where applicable, meet the goals of
the applicant;
``(iv) the relationship between local short-term
uses of man's environment and the maintenance and
enhancement of long-term productivity; and
``(v) any irreversible and irretrievable
commitments of Federal resources which would be
involved in the proposed agency action should it be
implemented.''; and
(C) by striking ``the responsible Federal
official'' and inserting ``the head of the lead
agency'';
(4) in subparagraph (D), by striking ``Any'' and inserting
``any'';
(5) by redesignating subparagraphs (D) through (I) as
subparagraphs (F) through (K), respectively;
(6) by inserting after subparagraph (C) the following:
``(D) ensure the professional integrity, including
scientific integrity, of the discussion and analysis in an
environmental document;
``(E) make use of reliable existing data and resources in
carrying out this Act;'';
(7) in subparagraph (G), as amended, by inserting
``consistent with the provisions of this Act,'' before
``study,''; and
(8) in subparagraph (H), as amended, by inserting
``consistent with the provisions of this Act,'' before
``recognize''.
(b) New Sections.--Title I of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) is amended by adding at the end the
following:
``SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF REVIEW.
``(a) Threshold Determinations.--An agency is not required to
prepare an environmental document with respect to a proposed agency
action if--
``(1) such action is not a final agency action within the
meaning of such term in chapter 5 of title 5, United States
Code;
``(2) such proposed agency action is covered by a
categorical exclusion established by a Federal agency;
``(3) the preparation of such document would clearly and
fundamentally conflict with the requirements of another
provision of law;
``(4) the proposed agency action is, in whole or in part, a
nondiscretionary action with respect to which such agency does
not have authority to take environmental factors into
consideration in determining whether to take the proposed
action; or
``(5) the proposed agency action is an action for which
such agency's compliance with another statute's requirements
serve the same function as the requirements of this Act with
respect to such action.
``(b) Levels of Review.--
``(1) Environmental impact statement.--An agency shall
issue an environmental impact statement with respect to a
proposed agency action that has a significant effect on the
quality of the human environment.
``(2) Environmental assessment.--An agency shall issue an
environmental assessment with respect to a proposed agency
action that is not likely to have a significant effect on the
quality of the human environment, or if the significance of
such effect is unknown. Such environmental assessment shall be
a concise public document prepared by a Federal agency to
provide notice to the public for the basis of such agency's
finding of no significant impact.
``(3) Sources of information.--In making a determination
under this subsection, an agency--
``(A) may make use of any reliable data source; and
``(B) is not required to undertake new scientific
or technical research.
``SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS.
``(a) Lead Agency.--
``(1) Designation.--If there are two or more involved
Federal agencies, such agencies shall determine, by letter or
memorandum, which agency shall be the lead agency based on
consideration of the following factors:
``(A) Magnitude of agency's involvement.
``(B) Project approval or disapproval authority.
``(C) Expertise concerning the action's
environmental effects.
``(D) Duration of agency's involvement.
``(E) Sequence of agency's involvement.
``(2) Joint lead agencies.--In making a determination under
paragraph (1), the involved Federal agencies may, in addition
to a Federal agency, appoint such Federal, State, Tribal, or
local agencies as joint lead agencies as the involved Federal
agencies shall determine appropriate. Joint lead agencies shall
jointly fulfill the role described in paragraph (3).
``(3) Role.--A lead agency shall, with respect to a
proposed agency action--
``(A) supervise the preparation of an environmental
document if, with respect to such proposed agency
action, there is more than one involved Federal agency;
``(B) request the participation of each cooperating
agency;
``(C) in preparing an environmental document, give
consideration to any analysis or proposal created by a
cooperating agency with jurisdiction by law or special
expertise;
``(D) develop a schedule, in consultation with each
involved cooperating agency and such other entities as
the lead agency determines appropriate, for completion
of any environmental review, permit, or authorization
required to carry out the proposed agency action;
``(E) if the lead agency determines that a review,
permit, or authorization will not be completed in
accordance with the schedule developed under
subparagraph (D), notify the agency responsible for
issuing such review, permit, or authorization of the
discrepancy and request that such agency take such
measures as such agency determines appropriate to
comply with such schedule; and
``(F) meet with a cooperating agency that requests
such a meeting.
``(4) Cooperating agency.--The lead agency may, with
respect to a proposed agency action, designate any involved
Federal agency or a State, Tribal, or local agency as a
cooperating agency. A cooperating agency may, not later than a
date specified by the lead agency, submit comments to the lead
agency. Such comments shall be limited to matters relating to
the proposed agency action with respect to which such agency
has special expertise or jurisdiction by law with respect to an
environmental issue.
``(5) Request for designation.--Any Federal, State, Tribal,
or local agency or person that is substantially affected by the
lack of a designation of a lead agency with respect to a
proposed agency action under paragraph (1) may submit a written
request for such a designation to an involved Federal agency.
An agency that receives a request under this paragraph shall
transmit such request to each involved Federal agency and to
the Council.
``(6) Council designation.--
``(A) Request.--Not earlier than 45 days after the
date on which a request is submitted under paragraph
(5), if no designation has been made under paragraph
(1), a Federal, State, Tribal, or local agency or
person that is substantially affected by the lack of a
designation of a lead agency may request that the
Council designate a lead agency. Such request shall
consist of--
``(i) a precise description of the nature
and extent of the proposed agency action; and
``(ii) a detailed statement with respect to
each involved Federal agency and each factor
listed in paragraph (1) regarding which agency
should serve as lead agency.
``(B) Transmission.--The Council shall transmit a
request received under subparagraph (A) to each
involved Federal agency.
``(C) Response.--An involved Federal agency may,
not later than 20 days after the date of the submission
of a request under subparagraph (A), submit to the
Council a response to such request.
``(D) Designation.--Not later than 40 days after
the date of the submission of a request under
subparagraph (A), the Council shall designate the lead
agency with respect to the relevant proposed agency
action.
``(b) One Document.--To the extent practicable, if there are 2 or
more involved Federal agencies with respect to a proposed agency action
and the lead agency has determined that section 102(2)(C) requires the
issuance of an environmental document, such requirement shall be deemed
satisfied with respect to all involved Federal agencies if the lead
agency issues such an environmental document.
``(c) Request for Public Comment.--Each notice of intent to prepare
an environmental impact statement under section 102 shall include a
request for public comment on potential alternatives or impacts and on
relevant information, studies, or analyses with respect to the proposed
agency action.
``(d) Statement of Purpose and Need.--Each environmental impact
statement shall include a statement of purpose and need that briefly
summarizes the underlying purpose and need for the proposed agency
action.
``(e) Estimated Total Cost.--The cover sheet for each environmental
impact statement shall include a statement of the estimated total cost
of preparing such environmental impact statement, including the costs
of agency full-time equivalent personnel hours, contractor costs, and
other direct costs.
``(f) Sponsor Preparation.--A lead agency may allow a project
sponsor to prepare an environmental assessment or an environmental
impact statement, if such agency provides such sponsor with appropriate
guidance and assists in the preparation. The lead agency shall
independently evaluate the environmental document and shall take
responsibility for the contents upon adoption.
``(g) Deadlines.--
``(1) Issuance of environmental impact statement.--Except
as provided in paragraph (2), with respect to a proposed agency
action, a lead agency shall complete--
``(A) the environmental impact statement not later
than the date that is 2 years after the date on which
such agency determines that section 102(2)(C) requires
the issuance of an environmental impact statement with
respect to such action; or
``(B) the environmental assessment not later than
the date that is 1 year after the date on which such
agency determines that such 102(2)(C) requires the
issuance of an environmental assessment with respect to
such action.
``(2) Delay.--A lead agency that determines it is not able
to meet the deadline described in paragraph (1) may approve a
delay of such deadline in writing and establish a new timeline
that provides only so much additional time as is necessary to
complete such environmental impact statement or environmental
assessment.
``SEC. 108. JUDICIAL REVIEW.
``(a) Limitations on Claims.--Notwithstanding any other provision
of law, a claim arising under Federal law seeking judicial review of
compliance with this Act, of a determination made under this Act, or of
Federal action resulting from a determination made under this Act,
shall be barred unless--
``(1) in the case of a claim pertaining to a proposed
agency action for which--
``(A) an environmental document was prepared and an
opportunity for comment was provided;
``(B) the claim is filed by a party that
participated in the administrative proceedings
regarding such environmental document; or
``(C) the claim is filed by a party that submitted
a comment during the public comment period for such
administrative proceedings and such comment was
sufficiently detailed to put the lead agency on notice
of the issue upon which the party seeks judicial
review;
``(2) except as provided in subsection (b), such claim is
filed not later than 120 days after the date of publication of
a notice in the Federal Register of agency intent to carry out
the proposed agency action;
``(3) such claim is filed after the issuance of a record of
decision or other final agency action with respect to the
relevant proposed agency action; and
``(4) such claim does not challenge the establishment of a
categorical exclusion under section 102.
``(b) Supplemental Environmental Impact Statement.--
``(1) Separate final agency action.--The issuance of a
supplemental environmental impact statement shall be considered
a final agency action for the purposes of chapter 5 of title 5,
United States Code, separate from the issuance of any previous
environmental impact statement with respect to the same
proposed agency action.
``(2) Deadline for filing a claim.--A claim seeking
judicial review of a supplemental environmental review issued
under section 102(2)(C) shall be barred unless--
``(A) such claim is filed within 120 days of the
date on which such supplemental environmental impact
statement is issued; and
``(B) such claim is based on information contained
in such supplemental environmental impact statement
that was not contained in a previous environmental
document pertaining to the same proposed agency action.
``(c) Prohibition on Injunctive Relief.--Notwithstanding any other
provision of law, a violation of this Act shall not constitute the
basis for injunctive relief.
``(d) Rule of Construction.--Nothing in this subsection shall be
construed to create a right of judicial review or place any limit on
filing a claim with respect to the violation of the terms of a permit,
license, or approval.
``SEC. 109. DEFINITIONS.
``In this title:
``(1) Categorical exclusion.--The term `categorical
exclusion' means a category of actions that a Federal agency
has determined normally does not significantly affect the
quality of the human environment within the meaning of section
102(2)(C).
``(2) Cooperating agency.--The term `cooperating agency'
means any Federal, State, Tribal, or local agency that has been
designated as a cooperating agency under section 107(a)(4).
``(3) Council.--The term `Council' means the Council on
Environmental Quality established in title II.
``(4) Environmental assessment.--The term `environmental
assessment' means an environmental assessment prepared under
section 106(b)(2).
``(5) Environmental document.--The term `environmental
document' means an environmental impact statement, an
environmental assessment, or a finding of no significant
impact.
``(6) Environmental impact statement.--The term
`environmental impact statement' means a detailed written
statement that is required by section 102(2)(C) of this Act.
``(7) Finding of no significant impact.--The term `finding
of no significant impact' means a determination by a Federal
agency that a proposed agency action does not require the
issuance of an environmental impact statement.
``(8) Involved federal agency.--The term `involved Federal
agency' means an agency that, with respect to a proposed agency
action--
``(A) proposed such action; or
``(B) is involved in such action because such
action is directly related, through functional
interdependence or geographic proximity, to an action
such agency has taken or has proposed to take.
``(9) Lead agency.--The term `lead agency' means, with
respect to a proposed agency action--
``(A) the agency that proposed such action; or
``(B) if there are 2 or more involved Federal
agencies with respect to such action, the agency
designated under section 107(a).
``(10) Major federal action.--
``(A) In general.--The term `major Federal action'
means an action that the agency carrying out such
action determines is subject to Federal control and
responsibility.
``(B) Exclusion.--The term `major Federal action'
does not include--
``(i) a non-Federal action with minimal
Federal funding or minimal Federal involvement
where a Federal agency cannot control the
outcome of the project;
``(ii) funding assistance solely in the
form of general revenue sharing funds with no
Federal agency control over the subsequent use
of such funds;
``(iii) loans, loan guarantees, or other
forms of financial assistance where a Federal
agency does not exercise sufficient control and
responsibility over the effect of the action;
``(iv) farm ownership and operating loan
guarantees by the Farm Service Agency pursuant
to sections 305 and 311 through 319 of the
Consolidated Farmers Home Administration Act of
1961 (7 U.S.C. 1925 and 1941 through 1949);
``(v) business loan guarantees provided by
the Small Business Administration pursuant to
section 7(a) or (b) and of the Small Business
Act (15 U.S.C. 636(a)), or title V of the Small
Business Investment Act of 1958 (15 U.S.C. 695
et seq.); or
``(vi) bringing judicial or administrative
civil or criminal enforcement actions.
``(11) Reasonably foreseeable.--The term `reasonably
foreseeable' means sufficiently likely to occur such that an
individual of ordinary prudence would take such occurrence into
account in reaching a decision.''.
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