[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3813 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 3813
To amend the National Environmental Policy Act of 1969 to provide for
legal reform, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 11, 2021
Ms. Cheney introduced the following bill; which was referred to the
Committee on Natural Resources, and in addition to the Committee on the
Judiciary, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall within the
jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend the National Environmental Policy Act of 1969 to provide for
legal reform, and for other purposes.
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 the ``NEPA Legal Reform Act''.
SEC. 2. LEGAL REFORMS UNDER NEPA.
(a) In General.--Title I of the National Environmental Policy Act
of 1969 is amended--
(1) by redesignating section 105 (42 U.S.C. 4335) as
section 106; and
(2) by inserting after section 104 (42 U.S.C. 4334) the
following:
``SEC. 105. LEGAL REFORM.
``(a) Definitions.--In this section:
``(1) Federal agency.--The term `Federal agency' includes a
State that has assumed responsibility under section 327 of
title 23, United States Code.
``(2) Head of a federal agency.--The term `head of a
Federal agency' includes the governor or head of an applicable
State agency of a State that has assumed responsibility under
section 327 of title 23, United States Code.
``(3) NEPA process.--
``(A) In general.--The term `NEPA process' means
the entirety of every process, analysis, or other
measure, including an environmental impact statement,
required to be carried out by a Federal agency under
this title before the agency undertakes a proposed
action.
``(B) Period.--For purposes of subparagraph (A),
the NEPA process--
``(i) begins on the date on which the head
of a Federal agency receives an application for
a proposed action from a project sponsor; and
``(ii) ends on the date on which the
Federal agency issues, with respect to the
proposed action--
``(I) a record of decision,
including, if necessary, a revised
record of decision;
``(II) a finding of no significant
impact; or
``(III) a categorical exclusion
under this title.
``(4) Project sponsor.--The term `project sponsor' means a
Federal agency or other entity, including a private or public-
private entity, that seeks approval of a proposed action.
``(b) Judicial Review.--
``(1) Standing.--Notwithstanding any other provision of
law, a plaintiff may only bring a claim arising under Federal
law seeking judicial review of a portion of the NEPA process if
the plaintiff pleads facts that allege that the plaintiff has
personally suffered, or will likely personally suffer, a
direct, tangible harm as a result of the portion of the NEPA
process for which the plaintiff is seeking review.
``(2) Statute of limitations.--
``(A) In general.--Notwithstanding any other
provision of law and except as provided in subparagraph
(B)(ii), a claim arising under Federal law seeking
judicial review of any portion of the NEPA process
shall be barred unless it is filed not later than the
earlier of--
``(i) 150 days after the final agency
action under the NEPA process has been taken;
and
``(ii) if applicable, an earlier date after
which judicial review is barred that is
specified in the Federal law pursuant to which
the judicial review is allowed.
``(B) New information.--
``(i) Consideration.--A Federal agency
shall consider for the purpose of a
supplemental environmental impact statement new
information received after the close of a
comment period if the information satisfies the
requirements for a supplemental environmental
impact statement under the regulations of the
Federal agency.
``(ii) Statute of limitations based on new
information.--If a supplemental environmental
impact statement is required under the
regulations of a Federal agency, a claim for
judicial review of the supplemental
environmental impact statement shall be barred
unless it is filed not later than the earlier
of--
``(I) 150 days after the
publication of a notice in the Federal
Register that the supplemental
environmental impact statement is
final; and
``(II) if applicable, an earlier
date after which judicial review is
barred that is specified in the Federal
law pursuant to which the judicial
review is allowed.
``(C) Savings clause.--Nothing in this paragraph
creates a right to judicial review.
``(3) Remedies.--
``(A) Preliminary injunctions and temporary
restraining orders.--
``(i) In general.--Subject to clause (ii),
in a motion for a temporary restraining order
or preliminary injunction against a Federal
agency or project sponsor in a claim arising
under Federal law seeking judicial review of
any portion of the NEPA process, the plaintiff
shall establish by clear and convincing
evidence that--
``(I) the plaintiff is likely to
succeed on the merits;
``(II) the plaintiff is likely to
suffer irreparable harm in the absence
of the temporary restraining order or
preliminary injunction, as applicable;
``(III) the balance of equities is
tipped in the favor of the plaintiff;
and
``(IV) the temporary restraining
order or preliminary injunction is in
the public interest.
``(ii) Additional requirements.--A court
may not grant a motion described in clause (i)
unless the court--
``(I) makes a finding of
extraordinary circumstances that
warrant the granting of the motion;
``(II) considers the potential
effects on public health, safety, and
the environment, and the potential for
significant negative effects on jobs
resulting from granting the motion; and
``(III) notwithstanding any other
provision of law, applies the
requirements of Rule 65(c) of the
Federal Rules of Civil Procedure.
``(B) Permanent injunctions.--
``(i) In general.--Subject to clause (ii),
in a motion for a permanent injunction against
a Federal agency or project sponsor a claim
arising under Federal law seeking judicial
review of any portion of the NEPA process, the
plaintiff shall establish by clear and
convincing evidence that--
``(I) the plaintiff has suffered an
irreparable injury;
``(II) remedies available at law,
including monetary damages, are
inadequate to compensate for the
injury;
``(III) considering the balance of
hardship between the plaintiff and
defendant, a remedy in equity is
warranted;
``(IV) the public interest is not
disserved by a permanent injunction;
and
``(V) if the error or omission of a
Federal agency in a statement required
under this title is the grounds for
which the plaintiff is seeking judicial
review, the error or omission is likely
to result in specific, irreparable
damage to the environment.
``(ii) Additional showing.--A court may not
grant a motion described in clause (i) unless--
``(I) the court makes a finding
that extraordinary circumstances exist
that warrant the granting of the
motion; and
``(II) the permanent injunction
is--
``(aa) as narrowly tailored
as possible to correct the
injury; and
``(bb) the least intrusive
means necessary to correct the
injury.''.
(b) Attorney Fees in Environmental Litigation.--
(1) Administrative procedure.--Section 504(b)(1) of title
5, United States Code, is amended--
(A) in subparagraph (E), by striking ``and'' at the
end;
(B) in subparagraph (F), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(G) `special factor' does not include knowledge,
expertise, or skill in environmental litigation.''.
(2) United states as party.--Section 2412(d)(2) of title
28, United States Code, is amended--
(A) in subparagraph (H), by striking ``and'' at the
end;
(B) in subparagraph (I), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following:
``(J) `special factor' does not include knowledge,
expertise, or skill in environmental litigation.''.
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