[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5323 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 5323
To amend the National Environmental Policy Act of 1969 to impose time
limits on the completion of certain required actions under that Act,
and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 14, 2024
Mr. Lee 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 that Act,
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 ``Undoing NEPA's Substantial Harm by
Advancing Concepts that Kickstart the Liberation of the Economy Act''
or the ``UNSHACKLE Act''.
SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 MODIFICATIONS.
(a) Process Requirements.--Section 107 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4336a) is amended to read
as follows:
``SEC. 107. 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 109; 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 109; 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
113(10)(B)(ii), not later than 2 years after the date
described in section 113(10)(B)(i).
``(B) Environmental documents.--Within the period
described in subparagraph (A), not later than 1 year
after the date described in section 113(10)(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
113(10)(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).
``(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 113(10)(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) Reimbursement of application fees.--
``(i) In general.--If a permit or
authorization described in subparagraph (A) is
not issued or denied within the period
described in that subparagraph, the head of the
Federal agency shall reimburse the project
sponsor for all applicable application fees
associated with the applicable proposed action.
``(ii) Effect.--If application fees are
reimbursed to a project sponsor under clause
(i), that reimbursement shall not affect the
disposition of the application for the proposed
action.
``(D) 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.
``(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.
``(3) 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 alternatives or
impacts and on relevant information, studies, or analyses with
respect to the proposed agency action.
``(4) Statement of purpose and need.--Each environmental
document shall include a statement of purpose and need that
briefly summarizes the underlying purpose and need for the
proposed agency action.
``(5) Page limits.--
``(A) Environmental impact statements.--
``(i) In general.--Except as provided in
clause (ii), an environmental impact statement
shall not exceed 150 pages, not including any
citations or appendices.
``(ii) Extraordinary complexity.--An
environmental impact statement for a proposed
agency action of extraordinary complexity shall
not exceed 300 pages, not including any
citations or appendices.
``(B) Environmental assessments.--An environmental
assessment shall not exceed 75 pages, not including any
citations or appendices.
``(6) Sponsor preparation.--
``(A) In general.--A lead agency shall prescribe
procedures to allow a project sponsor to prepare an
environmental assessment or an environmental impact
statement under the supervision of the lead agency, and
the lead agency may provide the project sponsor with
appropriate guidance and assist in the preparation.
``(B) Independent review.--If a lead agency allows
a project sponsor to prepare an environmental
assessment or environmental impact statement under
subparagraph (A), the lead agency shall independently
evaluate the environmental document and take
responsibility for the contents of that environmental
document.
``(e) 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 findings that served as the basis of the
denial.
``(f) 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.
``(g) 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 the UNSHACKLE Act, the Chair of
the Council 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.
``(h) 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) Other Reforms.--Title I of the National Environmental Policy
Act of 1969 (42 U.S.C. 4331 et seq.) is amended--
(1) by redesignating sections 108 through 111 as sections
110 through 113, respectively; and
(2) by inserting after section 107 the following:
``SEC. 108. 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 109; 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. 109. 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 the UNSHACKLE Act, 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, United States Code, 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 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.''.
(c) Prohibition on Guidance.--No Federal agency, including the
Council, may reissue the final guidance of the Council 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.
(d) Definitions.--Section 113 of the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.) (as redesignated by subsection
(b)(1)) is amended--
(1) in paragraph (2), by striking ``designated as a
cooperating agency under section 107(a)(3)'' and inserting
``invited to be a cooperating agency under section
107(f)(2)(B)'';
(2) by striking paragraph (8);
(3) by redesignating paragraphs (9), (10), (12), and (13)
as paragraphs (8), (9), (13), and (14), respectively;
(4) in subparagraph (B) of paragraph (8) (as so
redesignated), by striking ``designated under section
107(a)(1)'' and inserting ``selected under section
107(f)(2)(A)'';
(5) in subparagraph (B)(iv) of paragraph (9) (as so
redesignated), by striking ``section 7(a) or (b) and of the
Small Business Act ( U.S.C. 636(a)), or'' and inserting
``subsection (a) or (b) of section 7 of the Small Business Act
(15 U.S.C. 636) or'';
(6) by inserting after paragraph (9) (as so redesignated)
the following:
``(10) 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.''; and
(7) by inserting after paragraph (11) the following:
``(12) 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.''.
(e) Conforming Amendments.--
(1) Policy review.--Section 309 of the Clean Air Act (42
U.S.C. 7609) is repealed.
(2) Surface transportation project delivery program.--
Section 327 of title 23, United States Code, is amended--
(A) in subsection (a)(1), by striking ``The
Secretary'' and inserting ``Subject to subsection (n),
the Secretary''; and
(B) by adding at the end the following:
``(n) 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.''.
SEC. 3. ATTORNEY FEES IN ENVIRONMENTAL LITIGATION.
(a) Administrative Procedure.--Section 504(b)(1) of title 5, United
States Code, is amended--
(1) in subparagraph (E), by striking ``and'' at the end;
(2) in subparagraph (F), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(G) `special factor' does not include knowledge,
expertise, or skill in environmental litigation.''.
(b) United States as Party.--Section 2412(d)(2) of title 28, United
States Code, is amended--
(1) in subparagraph (H), by striking ``and'' at the end;
(2) in subparagraph (I), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(J) `special factor' does not include knowledge,
expertise, or skill in environmental litigation.''.
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