Sec. 2. Modernizing the National Environmental Policy Act of 1969

5,190 words·~24 min read·/bill/118/s/1449/is/section-2

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Section 102(2) of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332(2) ) is amended— in subparagraph (A), by striking insure and inserting ensure ; in subparagraph (B), by striking insure and inserting ensure ; in subparagraph (C)— by inserting consistent with the requirements of this Act and except as provided by any other provision of law, before include in every ; by striking clauses

(i)through

(v)and inserting the following: a reasonable number of alternatives to the major Federal action and effects of those alternatives, including an analysis of any negative effects of not implementing the major Federal action in the case of a no action alternative; the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and any irreversible and irretrievable commitments of Federal resources that would be involved in the major Federal action if the action is implemented. ; and in the undesignated matter following clause

(iii)(as so amended), in the second sentence, by striking the responsible Federal official and inserting the head of the Federal lead agency ; in subparagraph (D)— in the matter preceding clause (i), by striking official, if: and inserting official if— ; in each of clauses

(i)and (ii), by striking the comma at the end and inserting a semicolon; in clause (iii), by striking , and and inserting ; and ; and in clause (iv), by striking the period at the end and inserting a semicolon; by redesignating subparagraphs

(D)through

(I)as subparagraphs

(F)through (K), respectively; by inserting after the undesignated matter following subparagraph

(C)the following: ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document; make use of reliable existing data and resources in carrying out this Act; ; by striking subparagraph

(G)(as so redesignated) and inserting the following: consistent with the requirements of this Act, study, develop, and describe technically feasible alternatives in the jurisdiction and authority of the Federal agency; ; and in subparagraph

(H)(as so redesignated), by inserting consistent with the requirements of this Act, before recognize . The National Environmental Policy Act of 1969 is amended by inserting after section 2 ( 42 U.S.C. 4321 ) the following: In this Act: The term alternative means an agency action, other than a proposed agency action, that— is technically and economically feasible; is within the jurisdiction of the Federal agency; meets the purpose and need of the proposed agency action; and meets the goals of the project sponsor. Except as provided in subparagraph (B), the term authorization means any license, permit, approval, finding, determination, or other administrative decision issued by a Federal agency that is required or authorized under Federal law to implement a proposed agency action. The term authorization , with respect to a proposed agency action that is a programmatic or planning action, does not include a site-specific decision that is intended to implement that action at a later date. The term categorical exclusion means a category of actions that a Federal agency has determined, according to procedures established by the Federal agency, do not normally have a significant effect on the human environment. The term cooperating agency means any Federal agency or State, Tribal, or local agency that has been designated as a cooperating agency under section 111(a)(4). The term Council means the Council on Environmental Quality. The term effects means changes to the human environment as a result of a proposed agency action or an alternative, as applicable, to be carried out by a Federal agency that— are reasonably foreseeable, including changes that may occur not later than 10 years after the date on which the lead agency begins preparing an environmental document in an area directly affected by the proposed agency action or alternative, as applicable, such that an individual of ordinary prudence would take such occurrence into account in reaching a decision; and have a proximate causal relationship to the proposed agency action or an alternative, as applicable. For purposes of subparagraph (A)(ii), a but for causal relationship is insufficient to establish a proximate causal relationship. The term environmental assessment means a concise public document prepared by a Federal agency to determine whether to prepare an environmental impact statement or a finding of no significant impact for a proposed agency action. The term environmental document includes an environmental assessment, a finding of no significant impact, a notice of intent, and an environmental impact statement. The term environmental impact statement means a detailed statement required to be prepared for a major Federal action significantly affecting the quality of the human environment in accordance with title I. The term environmental review means the process of preparing, for a proposed agency action in accordance with this Act, an environmental impact statement, an environmental assessment, a categorical exclusion, a finding of no significant impact, or a record of decision. The term Federal agency has the meaning given the term agency in section 551 of title 5, United States Code. The term finding of no significant impact means a document prepared by a Federal agency briefly presenting the reasons why a proposed agency action, not subject to a categorical exclusion— will not have a significant effect on the human environment; and will not have an environmental impact statement prepared for the action. The term involved Federal agency means a Federal agency that, with respect to a proposed agency action— proposed the action; or is involved in the action because the action is directly related, through functional interdependence or geographic proximity, to an action the Federal agency has taken or has proposed to take. The term lead agency means the agency or agencies, in the case of joint lead agencies, preparing or having taken primary responsibility for carrying out any requirements relating to an environmental review for a proposed agency action pursuant to this Act. The term major Federal action means an action that the Federal agency carrying out the action determines is subject to substantial Federal control and responsibility. The term major Federal action does not include— a non-Federal action— with no or minimal Federal funding; with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project; or that does not include Federal land; funding assistance solely in the form of general revenue sharing funds that do not provide Federal agency compliance or enforcement responsibility over the subsequent use of those funds; 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; farm ownership and operating loan guarantees by the Farm Service Agency pursuant to sections 305 and 311 through 319 of the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1925 , 1941–1949); business loan guarantees provided by the Small Business Administration pursuant to subsection

(a)or

(b)of section 7 of the Small Business Act ( 15 U.S.C. 636 ), or title V of the Small Business Investment Act of 1958 ( 15 U.S.C. 695 et seq. ); bringing judicial or administrative civil or criminal enforcement actions; or extraterritorial activities or decisions, including agency activities or decisions with effects located entirely outside of the jurisdiction of the United States. An agency action may not be determined to be a major Federal action solely on the basis of— an interstate effect of the action or related project; or the provision of Federal funds for the action or related project. The term notice of intent means a public notice that a Federal agency intends to prepare and consider an environmental impact statement for a proposed agency action. The term page means a page that contains not more than 500 words, not including any explanatory maps, diagrams, graphs, tables, or other means of graphically displaying quantitative or geospatial information. The term project sponsor means the agency or other entity, including any private or public-private entity, that seeks an authorization for a proposed agency action. The term proposed agency action means an action at a stage when a Federal agency— has a goal; is actively preparing to make a decision on 1 or more alternatives to accomplish that goal; and can meaningfully evaluate the effects of the action. The term special expertise , with respect to a proposed agency action, means— having statutory responsibility; that the proposed agency action aligns with the mission of a Federal agency; or having related program experience relating to that proposed agency action. . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) is amended by adding at the end the following: A Federal agency shall not be required to prepare an environmental document with respect to a proposed agency action if— the proposed agency action is not a final agency action (within the meaning of chapter 5 of title 5, United States Code); the proposed agency action is covered by a categorical exclusion established by the agency, a Federal agency, or any other provision of law; the preparation of an environmental document would clearly and fundamentally conflict with the requirements of another provision of law; the proposed agency action is, in whole or in part, a nondiscretionary action with respect to which the agency does not have authority to take environmental factors into consideration in determining whether to carry out the proposed action; the proposed agency action is a rulemaking that is subject to section 553 of title 5, United States Code; or the proposed agency action is an action for which the compliance of the agency with the requirements of another law serves the same or similar function as the requirements of this Act with respect to the action. Pursuant to section 102(2)(C), a Federal agency shall issue an environmental impact statement with respect to a major Federal action that has a significant effect on the quality of the human environment. A Federal agency shall prepare 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 for which the significance of the effect on the quality of the human environment is unknown. An environmental assessment prepared under subparagraph

(A)shall be a concise public document prepared by a Federal agency that briefly provides evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. In making a determination under this subsection, an agency— may make use of any reliable data source; and shall not be required to carry out new scientific or technical research. . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) (as amended by subsection (c)) is amended by adding at the end the following: Subject to paragraph (2), an environmental impact statement shall briefly specify— the underlying purpose and need to which a Federal agency is responding; and the major Federal action, at least 1 alternative, and the effects of the major Federal action and any alternative. When the statutory duty of a Federal agency is to review an application for a proposed agency action, the Federal agency shall base the purpose and need to which the Federal agency is responding on the goals of the project sponsor and the authority of the Federal agency. The cover sheet for an environmental impact statement shall include a statement of the estimated total cost of preparing the environmental impact statement, including the costs of Federal agency full-time equivalent personnel hours, contractor costs, and other direct costs. Except as provided in paragraph (2), an environmental impact statement for a major Federal action shall not exceed 150 pages. An environmental impact statement for a major Federal action of unusual complexity, as determined by the applicable Federal agency, shall not exceed 300 pages. Not later than 2 years after the date on which a Federal agency issues a notice of intent for a major Federal action, the Federal agency shall publish in the Federal Register the final environmental impact statement or notice of availability of the final environmental impact statement for the major Federal action. If a Federal agency fails to publish a final environmental impact statement or notice of availability of the final environmental impact statement in accordance with the timeline described in paragraph (1), and the timeline has not been extended in accordance with paragraph (3), the requirements of this title shall be deemed to have been fulfilled for the major Federal action. A major Federal action deemed to fulfill the requirements of this title under subparagraph

(A)shall not be subject to judicial review under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ). The timeline established under paragraph

(1)may only be extended if— the extension is requested, in writing, by the project sponsor; and the applicable Federal agency concurs, in writing, with the extension. A notice of availability of a draft environmental impact statement or draft environmental impact statement published in the Federal Register shall include a request for public comment, within a comment period provided by the applicable Federal agency, on— the applicable major Federal action, at least 1 alternative to the major Federal action, and the effects of each; and relevant information, studies, or analyses with respect to the applicable major Federal action. Comments and objections relating to a draft environmental impact statement for a major Federal action shall be raised within a comment period provided by the applicable Federal agency, as described in paragraph (1). Comments and objections not provided within a comment period described in paragraph (1)— shall be considered unexhausted and forfeited; and shall not be grounds for judicial review. Each record of decision prepared for a final environmental impact statement by a Federal agency for a major Federal action shall— contain a statement certifying that the Federal agency considered at least 1 alternative and information and analyses relating to the major Federal action submitted during the process of carrying out the requirements of this title; and be issued not later than 90 days after the date on which the Federal agency publishes the final environmental impact statement or notice of availability of the final environmental impact statement in the Federal Register. For a major Federal action for which a record of decision described in subsection

(f)is prepared, all authorizations required under any other Federal law associated with the record of decision shall be issued not later than 90 days after the date on which the Federal agency publishes the final record of decision or notice of availability of the record of decision for the major Federal action in the Federal Register. For a major Federal action deemed to have fulfilled the requirements of this title under subsection (d)(2)(A), all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which the requirements were deemed to have been fulfilled under that subsection. . Section 102(2) of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332(2) ) (as amended by subsection (a)) is amended— in subparagraph (C)— in the matter preceding clause (i), by striking a detailed statement and inserting an environmental impact statement ; and in the undesignated matter following clause (iii), in the first sentence, by striking Prior to making any detailed statement and inserting Prior to preparing an environmental impact statement ; and in subparagraph (F)— in the matter preceding clause (i), by striking detailed statement and inserting environmental impact statement ; and in clause (iv), by striking detailed statement and inserting environmental impact statement . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) (as amended by subsection (d)(1)) is amended by adding at the end the following: Subject to paragraph (2), an environmental assessment shall briefly specify— the underlying purpose and need to which a Federal agency is responding; and the proposed agency action and the effects of the proposed agency action. When the statutory duty of a Federal agency is to review an application for a proposed agency action, the Federal agency shall base the purpose and need to which the Federal agency is responding on the goals of the project sponsor and the authority of the Federal agency. Not later than 1 year after the date on which a Federal agency decides to prepare an environmental assessment for a proposed agency action, the Federal agency shall publish in the Federal Register— a notice of availability of the environmental assessment; and the associated finding of no significant impact or notice of availability of the associated finding of no significant impact or notice of intent, as applicable. If a Federal agency fails to publish a notice of availability of the environmental assessment and associated finding of no significant impact or notice of intent, as applicable, in accordance with the timeline described in paragraph (1), and the timeline has not been extended in accordance with paragraph (3), the proposed agency action shall be deemed to have no significant impacts and the requirements of this title shall be deemed to have been fulfilled for that proposed agency action. A proposed agency action deemed to have no significant impacts and to fulfill the requirements of this title under subparagraph

(1)may only be extended if— the extension is requested, in writing, by the project sponsor; and the Federal agency concurs, in writing, with the extension. For a proposed agency action for which the materials described in subparagraphs

(A)and

(B)of paragraph

(1)were published in the Federal Register, all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which those materials were published. For a proposed agency action that is deemed to have no significant impacts and for which the requirements of this title are deemed to have been fulfilled under paragraph (2)(A), all authorizations required under any other Federal law shall be issued not later than 90 days after the date on which the proposed agency action was so deemed under that paragraph. An environmental assessment shall not exceed 75 pages, unless otherwise approved and established, in writing, by the head of the lead agency. . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) (as amended by subsection (e)) is amended by adding at the end the following: A categorical exclusion established by a Federal agency for a category of proposed agency actions shall be adopted by all other Federal agencies and applied to any proposed agency action that is within the category of proposed agency actions for which the categorical exclusion was established. . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) (as amended by subsection (f)) is amended by adding at the end the following: If there are 2 or more involved Federal agencies that have authority with respect to a proposed agency action, the involved Federal agencies shall determine, by letter or memorandum, which Federal agency shall be the Federal lead agency based on consideration of the following factors: Magnitude of the involvement of each Federal agency. Special expertise concerning the effects of the proposed agency action. Duration of the involvement of each Federal agency. In making a determination under paragraph (1), the involved Federal agencies may appoint State, Tribal, or local agencies as joint lead agencies, as determined appropriate by the involved Federal agencies. Joint lead agencies shall jointly fulfill the role described in paragraph (3). A lead agency shall, with respect to a proposed agency action— supervise the preparation of an environmental document if, with respect to the proposed agency action, there is more than 1 involved Federal agency; request the participation of each cooperating agency at the earliest practicable time; in preparing an environmental document, give consideration to any analysis or proposal created by a cooperating agency with jurisdiction by law or with special expertise; develop a schedule with concurrent reviews, in consultation with each involved Federal agency, the project sponsor, and such other entities as the lead agency determines appropriate, for completion of any environmental review or authorization relating to the proposed agency action; if the lead agency determines that an authorization will not be completed in accordance with the schedule developed under subparagraph (D), notify the Federal agency responsible for issuing the authorization and request that the agency take such measures as the agency determines appropriate to comply with the schedule; and meet with a cooperating agency that requests a meeting. 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, which shall be limited to matters relating to the proposed agency action with respect to which the cooperating agency has special expertise or jurisdiction by law with respect to an environmental issue. A project sponsor or any Federal agency or State, Tribal, or local agency 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 each involved Federal agency. An agency that receives a request under subparagraph

(A)shall submit the request to each involved Federal agency and the Council. 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), the project sponsor or a Federal agency or State, Tribal, or local agency that is substantially affected by the lack of a designation of a lead agency may request that the Council designate a Federal lead agency. A request made under clause

(i)shall include— a precise description of the nature and extent of the proposed agency action; and a detailed statement with respect to each involved Federal agency and each factor described in subparagraphs

(A)through

(D)of paragraph

(1)with respect to which Federal agency should serve as the Federal lead agency. The Council shall submit a request received under subparagraph

(A)to each involved Federal agency. 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 the request. Not later than 40 days after the date on which an agency or a project sponsor submits a request under subparagraph (A)(i), the Council shall designate the Federal lead agency with respect to the applicable proposed agency action. Except as provided in paragraph (4), all authorizations relating to a proposed agency action shall rely on a single environmental document and joint record of decision for each kind of environmental document and joint record of decision prepared under this title under the leadership of a lead agency. The lead agency shall develop environmental documents and records of decision sufficient to satisfy the requirements for any authorization or other action required for or related to a proposed agency action, including authorizations by other Federal agencies. Involved Federal agencies shall— cooperate with the lead agency; and provide timely information to assist the lead agency in carrying out the requirements of this subsection. A Federal agency with responsibility to issue an authorization or take an action for or related to a proposed agency action shall work with the lead agency to ensure that the agency issuing the authorization or taking the action is treated as an involved Federal agency for the action. The lead agency may waive the requirements of paragraph

(1)with respect to a proposed agency action if— the project sponsor requests that agencies issue separate environmental documents; or the obligations of a cooperating agency or other involved Federal agency under this title have already been satisfied with respect to the proposed agency action. In developing an environmental document for a proposed agency action, the lead agency and any other involved Federal agencies shall only consider the effects of the proposed agency action that— occur on Federal land; or are subject to Federal control and responsibility. A lead agency shall allow a project sponsor to prepare an environmental document for a proposed agency action on request of the project sponsor. A lead agency may provide a project sponsor that elects to prepare an environmental document under paragraph

(1)with appropriate guidance and assistance in the preparation of that environmental document. A lead agency shall— independently evaluate the environmental document prepared by a project sponsor under paragraph (1); and take responsibility for the contents of the environmental document on adoption. . Title I of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4331 et seq. ) (as amended by subsection (g)) is amended by adding at the end the following: In this section, the term covered cause of action means a cause of action that— is filed on or after the date of enactment of this section; and seeks judicial review— of a record of decision or finding of no significant impact based on a claim that an environmental review was improperly conducted or an environmental document is invalid under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ); or under Federal law of an authorization issued under section 107(g) or 108(b)(4). In this subsection: The term fully constructed , with respect to a project or activity, means that construction of the project or activity was completed— on the date of enactment of this section; or at some point during the 180-day period preceding that date of enactment. The term operational , with respect to a project or activity, means that the project or activity is in operation in some form, including test mode— on the date of enactment of this section; or at some point during the 180-day period preceding that date of enactment. Any claim (including any claim pending in a court on the date of enactment of this section) that seeks judicial review of a record of decision or finding of no significant impact based on an objection that an environmental review was improperly conducted, and any claim that seeks judicial review of an environmental document as invalid under subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ), shall be moot and barred on the date of enactment of this section if— a record of decision or finding of no significant impact has been issued by a Federal agency at the time at which the project or activity began; and the project or activity for which the record of decision or finding of no significant impact was issued is fully constructed or operational. Notwithstanding any other provision of Federal law, a covered cause of action shall be filed by the date that is 60 days after— the date on which the lead agency publishes in the Federal Register the record of decision or notice of availability of the record of decision, in the case of an environmental review resulting in a final environmental impact statement; the date on which the Federal lead agency publishes in the Federal Register a finding of no significant impact or notice of availability of the finding of no significant impact, in the case of an environmental review resulting in a finding of no significant impact; or the date on which a Federal agency issues an authorization, in the case of an authorization issued under section 107(g) or 108(b)(4). A covered cause of action that is not filed by the deadline described in paragraph

(1)shall be barred. A district court of the United States shall render a final judgment on a covered cause of action— as expeditiously as practicable; and not later than the date that is 180 days after the date on which the covered cause of action is filed. A court of appeals of the United States shall render final judgment on a covered cause of action subject to its original jurisdiction or an interlocutory order or final judgment, decree, or order of a district court of the United States in a covered cause of action— as expeditiously as practicable; and not later than the date that is 180 days after the date on which the applicable interlocutory order or final judgment, decree, or order of the district court was issued. If a court of competent jurisdiction remands a record of decision, a finding of no significant impact, or an authorization under this title to a Federal agency, the court shall set a reasonable schedule and deadline for the Federal agency to act on remand, which shall not exceed 180 days from the date on which the order of the court was issued. The head of the Federal agency to which a court remands a record of decision, a finding of no significant impact, or an authorization under paragraph

(1)shall take such actions as may be necessary to provide for the expeditious disposition of the action on remand in accordance with the schedule and deadline set by the court under that paragraph. To the maximum extent practicable, district courts of the United States and courts of appeals of the United States shall randomly assign cases seeking judicial review in a covered cause of action to judges appointed, designated, or assigned to sit as judges of the court in a manner to avoid the appearance of favoritism or bias. Nothing in this section— establishes a right to judicial review; or places any limit on filing a claim that a person has violated the terms of an authorization. Notwithstanding any other provision of law, the application of a categorical exclusion to a final agency action by a Federal agency shall not be subject to judicial review under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ). For purposes of a covered cause of action— a supplemental or revised environmental document or record of decision for a proposed agency action, when required, shall be considered to be a separate environmental document or record of decision; and the deadline for filing a claim for judicial review of an environmental document or record of decision described in paragraph

(1)shall be the date that is 60 days after the date of publication in the Federal Register of a notice of availability of the environmental document or record of decision, unless a shorter time is specified in the Federal law pursuant to which judicial review is authorized. .

Connectionstraces to 6

Traces to 6 documents

U.S. Code

Citation graph

cites case law

Sec. 2

Modernizing the National Environmental Policy Act of 1969

Cites 6Cited by 0 across 0 sources