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S. 721: NEPA Accountability and Enforcement Act


The text of the bill below is as of Mar 11, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 721

IN THE SENATE OF THE UNITED STATES

March 11, 2021

(for himself, Mr. Barrasso, and Mr. Cruz) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To amend the National Environmental Policy Act of 1969 to impose time limits on the completion of certain required actions under the Act, and for other purposes.

1.

Short title

This Act may be cited as the NEPA Accountability and Enforcement Act.

2.

National Environmental Policy Act timelines

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:

105.

Applicable timelines

(a)

Definitions

In this section:

(1)

Environmental impact statement

The term environmental impact statement means a detailed statement required under section 102(2)(C).

(2)

Federal agency

The term Federal agency includes a State that has assumed responsibility under section 327 of title 23, United States Code.

(3)

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.

(4)

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.

(5)

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)

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 subsection (a)(4)(B)(ii), not later than 2 years after the date described in subsection (a)(4)(B)(i).

(B)

Environmental documents

Within the period described in subparagraph (A), not later than 1 year after the date described in subsection (a)(4)(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 subsection (a)(4)(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

(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).

(2)

Authorizations and permits

(A)

In general

Not later than 90 days after the date described in subsection (a)(4)(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.

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