II 

117TH CONGRESS 

1ST SESSION S. 718 

To amend the National Environmental Policy Act of 1969 to reform agency 

process requirements, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 11, 2021 

Mr. LEE (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 reform agency process requirements, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘NEPA Agency Process 

5 Accountability Act’’. 

6 SEC. 2. AGENCY PROCESS REFORMS UNDER NEPA. 

7 Title I of the National Environmental Policy Act of 

8 1969 is amended— 


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1 (1) by redesignating section 105 (42 U.S.C. 

2 4335) as section 106; and 

3 (2) by inserting after section 104 (42 U.S.C. 

4 4334) the following: 

5 ‘‘SEC. 105. AGENCY PROCESS REFORMS. 

6 ‘‘(a) DEFINITIONS.—In this section: 

7 ‘‘(1) ENVIRONMENTAL ASSESSMENT.—The 

8 term ‘environmental assessment’ has the meaning 

9 given the term in section 1508.9 of title 40, Code of 

10 Federal Regulations (or a successor regulation). 

11 ‘‘(2) ENVIRONMENTAL IMPACT STATEMENT.— 

12 The term ‘environmental impact statement’ means a 

13 detailed statement required under section 102(2)(C). 

14 ‘‘(3) FEDERAL AGENCY.—The term ‘Federal 

15 agency’ includes a State that has assumed responsi16 bility under section 327 of title 23, United States 

17 Code. 

18 ‘‘(4) HEAD OF A FEDERAL AGENCY.—The term 

19 ‘head of a Federal agency’ includes the governor or 

20 head of an applicable State agency of a State that 

21 has assumed responsibility under section 327 of title 

22 23, United States Code. 

23 ‘‘(5) NEPA PROCESS.— 

24 ‘‘(A) IN GENERAL.—The term ‘NEPA 

25 process’ means the entirety of every process, 


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1 analysis, or other measure, including an envi2 ronmental impact statement, required to be car3 ried out by a Federal agency under this title be4 fore the agency undertakes a proposed action. 

5 ‘‘(B) PERIOD.—For purposes of subpara6 graph (A), the NEPA process— 

7 ‘‘(i) begins on the date on which the 

8 head of a Federal agency receives an appli9 cation for a proposed action from a project 

10 sponsor; and 

11 ‘‘(ii) ends on the date on which the 

12 Federal agency issues, with respect to the 

13 proposed action— 

14 ‘‘(I) a record of decision, includ15 ing, if necessary, a revised record of 

16 decision; 

17 ‘‘(II) a finding of no significant 

18 impact; or 

19 ‘‘(III) a categorical exclusion 

20 under this title. 

21 ‘‘(6) PROJECT SPONSOR.—The term ‘project 

22 sponsor’ means a Federal agency or other entity, in23 cluding a private or public-private entity, that seeks 

24 approval of a proposed action. 


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1 ‘‘(b) PROHIBITIONS.—In carrying out the NEPA 

2 process, the head of a Federal agency may not— 

3 ‘‘(1) consider an alternative to the proposed ac4 tion if the proposed action is not technically or eco5 nomically feasible to the project sponsor; or 

6 ‘‘(2) consider an alternative to the proposed ac7 tion that is not within the jurisdiction of the Federal 

8 agency. 

9 ‘‘(c) ENVIRONMENTAL DOCUMENTS.— 

10 ‘‘(1) EIS REQUIRED.—In carrying out the 

11 NEPA process for a proposed action that requires 

12 the preparation of an environmental impact state13 ment, the head of a Federal agency shall produce for 

14 the proposed action not more than 1— 

15 ‘‘(A) environmental impact statement; 

16 ‘‘(B) if necessary, environmental assess17 ment; and 

18 ‘‘(C) record of decision. 

19 ‘‘(2) EIS NOT REQUIRED.—In carrying out the 

20 NEPA process for a proposed action that does not 

21 require the preparation of an environmental impact 

22 statement, the head of a Federal agency shall 

23 produce for the proposed action not more than 1— 

24 ‘‘(A) environmental assessment; or 

25 ‘‘(B) finding of no significant impact. 


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1 ‘‘(d) CATEGORICAL EXCLUSIONS.— 

2 ‘‘(1) IN GENERAL.—Notwithstanding any other 

3 provision of law and subject to paragraph (2), the 

4 head of a Federal agency may, without further ap5 proval, use a categorical exclusion under this title 

6 that has been approved by— 

7 ‘‘(A)(i) another Federal agency; and 

8 ‘‘(ii) the Council on Environmental Qual9 ity; or 

10 ‘‘(B) an Act of Congress. 

11 ‘‘(2) REQUIREMENTS.—The head of a Federal 

12 agency may use a categorical exclusion described in 

13 paragraph (1) if the head of the Federal agency— 

14 ‘‘(A) carefully reviews the description of 

15 the proposed action to ensure that it fits within 

16 the category of actions described in the categor17 ical exclusion; and 

18 ‘‘(B) considers the circumstances associ19 ated with the proposed action to ensure that 

20 there are no extraordinary circumstances that 

21 warrant the preparation of an environmental 

22 assessment or an environmental impact state23 ment. 

24 ‘‘(3) EXTRAORDINARY CIRCUMSTANCES.—If the 

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1 dinary circumstances are present with respect to a 

2 proposed action, the head of the Federal agency 

3 shall— 

4 ‘‘(A) consider whether mitigating cir5 cumstances or other conditions are sufficient to 

6 avoid significant effects of the proposed action; 

7 and 

8 ‘‘(B) if the head of the Federal agency de9 termines that those significant effects can be 

10 avoided, apply a categorical exclusion to the 

11 proposed action. 

12 ‘‘(e) REUSE OF WORK; DOCUMENTS PREPARED BY

13 QUALIFIED 3RD PARTIES; UNEXPECTED CIR14 CUMSTANCES.— 

15 ‘‘(1) IN GENERAL.—In carrying out the NEPA 

16 process for a proposed action— 

17 ‘‘(A) subject to paragraph (2), the head of 

18 a Federal agency shall— 

19 ‘‘(i) use any applicable findings and 

20 research from a prior NEPA process of 

21 any Federal agency; and 

22 ‘‘(ii) incorporate the findings and re23 search described in clause (i) into any ap24 plicable analysis under the NEPA process; 

25 and 


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1 ‘‘(B) a Federal agency may adopt as an 

2 environmental impact statement, environmental 

3 assessment, or other environmental document 

4 to achieve compliance with this title— 

5 ‘‘(i) an environmental document pre6 pared under the law of the applicable State 

7 if the head of the Federal agency deter8 mines that the environmental laws of the 

9 applicable State— 

10 ‘‘(I) provide the same level of en11 vironmental analysis as the analysis 

12 required under this title; and 

13 ‘‘(II) allow for the opportunity of 

14 public comment; or 

15 ‘‘(ii) subject to paragraph (3), an en16 vironmental document prepared by a quali17 fied third party chosen by the project spon18 sor, at the expense of the project sponsor, 

19 if the head of the Federal agency— 

20 ‘‘(I) provides oversight of the 

21 preparation of the environmental doc22 ument by the third party; and 

23 ‘‘(II) independently evaluates the 

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1 pliance of the environmental document 

2 with this title. 

3 ‘‘(2) REQUIREMENT FOR THE REUSE OF FIND4 INGS AND RESEARCH.—The head of a Federal agen5 cy may reuse the applicable findings and research 

6 described in paragraph (1)(A) if— 

7 ‘‘(A)(i) the project for which the head of 

8 the Federal agency is seeking to reuse the find9 ings and research was in close geographic prox10 imity to the proposed action; and 

11 ‘‘(ii) the head of the Federal agency deter12 mines that the conditions under which the ap13 plicable findings and research were issued have 

14 not substantially changed; or 

15 ‘‘(B)(i) the project for which the head of 

16 the Federal agency is seeking to reuse the find17 ings and research was not in close geographic 

18 proximity to the proposed action; and 

19 ‘‘(ii) the head of the Federal agency deter20 mines that the proposed action has similar 

21 issues or decisions as the project. 

22 ‘‘(3) REQUIREMENTS FOR CREATION OF ENVI23 RONMENTAL DOCUMENT BY QUALIFIED 3RD PAR24 TIES.— 


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1 ‘‘(A) IN GENERAL.—A qualified third 

2 party may prepare an environmental document 

3 intended to be adopted by a Federal agency as 

4 the environmental impact statement, environ5 mental assessment, or other environmental doc6 ument for a proposed action under paragraph 

7 (1)(B)(ii) if— 

8 ‘‘(i) the project sponsor submits a 

9 written request to the head of the applica10 ble Federal agency that the head of the 

11 Federal agency approve the qualified third 

12 party to create the document intended to 

13 be adopted by a Federal agency as the en14 vironmental impact statement, environ15 mental assessment, or other environmental 

16 document; and 

17 ‘‘(ii) the head of the Federal agency 

18 determines that— 

19 ‘‘(I) the third party is qualified 

20 to prepare the document; and 

21 ‘‘(II) the third party has no fi22 nancial or other interest in the out23 come of the proposed action. 

24 ‘‘(B) DEADLINE.—The head of a Federal 

25 agency that receives a written request under 


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1 subparagraph (A)(i) shall issue a written deci2 sion approving or denying the request not later 

3 than 30 days after the date on which the writ4 ten request is received. 

5 ‘‘(C) NO PRIOR WORK.—The head of a 

6 Federal agency may not adopt an environ7 mental document under paragraph (1)(B)(ii) if 

8 the qualified third party began preparing the 

9 document prior to the date on which the head 

10 of the Federal agency issues the written deci11 sion under subparagraph (B) approving the re12 quest. 

13 ‘‘(D) DENIALS.—If the head of a Federal 

14 agency issues a written decision denying the re15 quest under subparagraph (A)(i), the head of 

16 the Federal agency shall submit to the project 

17 sponsor with the written decision the findings 

18 that served as the basis of the denial. 

19 ‘‘(4) UNEXPECTED CIRCUMSTANCES.—If, while 

20 carrying out a proposed action after the completion 

21 of the NEPA process for that proposed action, a 

22 Federal agency or project sponsor encounters a new 

23 or unexpected circumstance or condition that may 

24 require the reevaluation of the proposed action 

25 under this title, the head of the Federal agency with 


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1 responsibility for carrying out the NEPA process for 

2 the proposed action shall— 

3 ‘‘(A) consider whether mitigating the new 

4 or unexpected circumstance or condition is suf5 ficient to avoid significant effects that may re6 sult from the circumstance or condition; and 

7 ‘‘(B) if the head of the Federal agency de8 termines under subparagraph (A) that the sig9 nificant effects that result from the cir10 cumstance or condition can be avoided, mitigate 

11 the circumstance or condition without carrying 

12 out the NEPA process again. 

13 ‘‘(f) MULTI-AGENCY PROJECTS.— 

14 ‘‘(1) DEFINITIONS.—In this subsection: 

15 ‘‘(A) COOPERATING AGENCY.—The term 

16 ‘cooperating agency’ means a Federal agency 

17 involved in a proposed action that— 

18 ‘‘(i) is not the lead agency; and 

19 ‘‘(ii) has the jurisdiction or special ex20 pertise such that the Federal agency needs 

21 to be consulted— 

22 ‘‘(I) to use a categorical exclu23 sion; or 


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1 ‘‘(II) to prepare an environ2 mental assessment or environmental 

3 impact statement, as applicable. 

4 ‘‘(B) LEAD AGENCY.—The term ‘lead 

5 agency’ means the Federal agency selected 

6 under paragraph (2)(A). 

7 ‘‘(2) AGENCY DESIGNATION.— 

8 ‘‘(A) LEAD AGENCY.—In carrying out the 

9 NEPA process for a proposed action that re10 quires authorization from multiple Federal 

11 agencies, the heads of the applicable Federal 

12 agencies shall determine the lead agency for the 

13 proposed action. 

14 ‘‘(B) INVITATION.—The head of the lead 

15 agency may invite any relevant State, local, or 

16 Tribal agency with Federal authorization deci17 sion responsibility to be a cooperating agency. 

18 ‘‘(3) RESPONSIBILITIES OF LEAD AGENCY.— 

19 The lead agency for a proposed action shall— 

20 ‘‘(A) as soon as practicable and in con21 sultation with the cooperating agencies, deter22 mine whether a proposed action requires the 

23 preparation of an environmental impact state24 ment; and 


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1 ‘‘(B) if the head of the lead agency deter2 mines under subparagraph (A) that an environ3 mental impact statement is necessary— 

4 ‘‘(i) be responsible for coordinating 

5 the preparation of an environmental im6 pact statement; 

7 ‘‘(ii) provide cooperating agencies with 

8 an opportunity to review and contribute to 

9 the preparation of the environmental im10 pact statement and environmental assess11 ment, as applicable, of the proposed action, 

12 except that the cooperating agency shall 

13 limit comments to issues within the special 

14 expertise or jurisdiction of the cooperating 

15 agency; and 

16 ‘‘(iii) subject to subsection (b), as 

17 soon as practicable and in consultation 

18 with the cooperating agencies, determine 

19 the range of alternatives to be considered 

20 for the proposed action. 

21 ‘‘(4) ENVIRONMENTAL DOCUMENTS.—In car22 rying out the NEPA process for a proposed action, 

23 the lead agency shall prepare not more than 1 of 

24 each type of document described in paragraph (1) or 

25 (2) of subsection (c), as applicable— 


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1 ‘‘(A) in consultation with cooperating 

2 agencies; and 

3 ‘‘(B) for all applicable Federal agencies. 

4 ‘‘(5) PROHIBITIONS.— 

5 ‘‘(A) IN GENERAL.—A cooperating agency 

6 may not evaluate an alternative to the proposed 

7 action that has not been determined to be with8 in the range of alternatives considered under 

9 paragraph (3)(B)(iii). 

10 ‘‘(B) OMISSION.—If a cooperating agency 

11 submits to the lead agency an evaluation of an 

12 alternative that does not meet the requirements 

13 of subsection (b), the lead agency shall omit the 

14 alternative from the environmental impact 

15 statement. 

16 ‘‘(g) REPORTS.— 

17 ‘‘(1) NEPA DATA.— 

18 ‘‘(A) IN GENERAL.—The head of each 

19 Federal agency that carries out the NEPA 

20 process shall carry out a process to track, and 

21 annually submit to Congress a report con22 taining, the information described in subpara23 graph (B). 

24 ‘‘(B) INFORMATION DESCRIBED.—The in25 formation referred to in subparagraph (A) is, 


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1 with respect to the Federal agency issuing the 

2 report under that subparagraph— 

3 ‘‘(i) the number of proposed actions 

4 for which a categorical exclusion was 

5 issued during the reporting period; 

6 ‘‘(ii) the length of time the Federal 

7 agency took to issue the categorical exclu8 sions described in clause (i); 

9 ‘‘(iii) the number of proposed actions 

10 pending on the date on which the report is 

11 submitted for which the issuance of a cat12 egorical exclusion is pending; 

13 ‘‘(iv) the number of proposed actions 

14 for which an environmental assessment 

15 was issued during the reporting period; 

16 ‘‘(v) the length of time the Federal 

17 agency took to complete each environ18 mental assessment described in clause (iv); 

19 ‘‘(vi) the number of proposed actions 

20 pending on the date on which the report is 

21 submitted for which an environmental as22 sessment is being drafted; 

23 ‘‘(vii) the number of proposed actions 

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1 ment was issued during the reporting pe2 riod; 

3 ‘‘(viii) the length of time the Federal 

4 agency took to complete each environ5 mental impact statement described in 

6 clause (vii); and 

7 ‘‘(ix) the number of proposed actions 

8 pending on the date on which the report is 

9 submitted for which an environmental im10 pact statement is being drafted. 

11 ‘‘(2) NEPA COSTS.— 

12 ‘‘(A) IN GENERAL.—Not later than 1 year 

13 after the date of enactment of this subsection, 

14 the Chair of the Council on Environmental 

15 Quality and the Director of the Office of Man16 agement and Budget shall jointly develop a 

17 methodology to assess the comprehensive costs 

18 of the NEPA process. 

19 ‘‘(B) REQUIREMENTS.—The head of each 

20 Federal agency that carries out the NEPA 

21 process shall— 

22 ‘‘(i) adopt the methodology developed 

23 under subparagraph (A); and 


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1 ‘‘(ii) use the methodology developed 

2 under subparagraph (A) to annually sub3 mit to Congress a report describing— 

4 ‘‘(I) the comprehensive cost of 

5 the NEPA process for each proposed 

6 action that was carried out within the 

7 reporting period; and 

8 ‘‘(II) for a proposed action for 

9 which the head of the Federal agency 

10 is still completing the NEPA process 

11 at the time the report is submitted— 

12 ‘‘(aa) the amount of money 

13 expended to date to carry out the 

14 NEPA process for the proposed 

15 action; and 

16 ‘‘(bb) an estimate of the re17 maining costs before the NEPA 

18 process for the proposed action is 

19 complete.’’. 

Æ 


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