II 

117TH CONGRESS 

1ST SESSION S. 716 

To amend the National Environmental Policy Act of 1969 to provide for 

legal reform, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 11, 2021 

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 provide for legal reform, 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 Legal Reform 

5 Act’’. 

6 SEC. 2. LEGAL REFORMS UNDER NEPA. 

7 (a) IN GENERAL.—Title I of the National Environ8 mental Policy Act of 1969 is amended— 

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

10 4335) as section 106; and 


pamtmann on DSKBC07HB2PROD with BILLS
2 

•S 716 IS

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

2 4334) the following: 

3 ‘‘SEC. 105. LEGAL REFORM. 

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

5 ‘‘(1) FEDERAL AGENCY.—The term ‘Federal 

6 agency’ includes a State that has assumed responsi7 bility under section 327 of title 23, United States 

8 Code. 

9 ‘‘(2) HEAD OF A FEDERAL AGENCY.—The term 

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

11 head of an applicable State agency of a State that 

12 has assumed responsibility under section 327 of title 

13 23, United States Code. 

14 ‘‘(3) NEPA PROCESS.— 

15 ‘‘(A) IN GENERAL.—The term ‘NEPA 

16 process’ means the entirety of every process, 

17 analysis, or other measure, including an envi18 ronmental impact statement, required to be car19 ried out by a Federal agency under this title be20 fore the agency undertakes a proposed action. 

21 ‘‘(B) PERIOD.—For purposes of subpara22 graph (A), the NEPA process— 

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

24 head of a Federal agency receives an appliVerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716

pamtmann on DSKBC07HB2PROD with BILLS
3 

•S 716 IS

1 cation for a proposed action from a project 

2 sponsor; and 

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

4 Federal agency issues, with respect to the 

5 proposed action— 

6 ‘‘(I) a record of decision, includ7 ing, if necessary, a revised record of 

8 decision; 

9 ‘‘(II) a finding of no significant 

10 impact; or 

11 ‘‘(III) a categorical exclusion 

12 under this title. 

13 ‘‘(4) PROJECT SPONSOR.—The term ‘project 

14 sponsor’ means a Federal agency or other entity, in15 cluding a private or public-private entity, that seeks 

16 approval of a proposed action. 

17 ‘‘(b) JUDICIAL REVIEW.— 

18 ‘‘(1) STANDING.—Notwithstanding any other 

19 provision of law, a plaintiff may only bring a claim 

20 arising under Federal law seeking judicial review of 

21 a portion of the NEPA process if the plaintiff pleads 

22 facts that allege that the plaintiff has personally suf23 fered, or will likely personally suffer, a direct, tan24 gible harm as a result of the portion of the NEPA 

25 process for which the plaintiff is seeking review. 


pamtmann on DSKBC07HB2PROD with BILLS
4 

•S 716 IS

1 ‘‘(2) STATUTE OF LIMITATIONS.— 

2 ‘‘(A) IN GENERAL.—Notwithstanding any 

3 other provision of law and except as provided in 

4 subparagraph (B)(ii), a claim arising under 

5 Federal law seeking judicial review of any por6 tion of the NEPA process shall be barred un7 less it is filed not later than the earlier of— 

8 ‘‘(i) 150 days after the final agency 

9 action under the NEPA process has been 

10 taken; and 

11 ‘‘(ii) if applicable, an earlier date after 

12 which judicial review is barred that is spec13 ified in the Federal law pursuant to which 

14 the judicial review is allowed. 

15 ‘‘(B) NEW INFORMATION.— 

16 ‘‘(i) CONSIDERATION.—A Federal 

17 agency shall consider for the purpose of a 

18 supplemental environmental impact state19 ment new information received after the 

20 close of a comment period if the informa21 tion satisfies the requirements for a sup22 plemental environmental impact statement 

23 under the regulations of the Federal agen24 cy. 


pamtmann on DSKBC07HB2PROD with BILLS
5 

•S 716 IS

1 ‘‘(ii) STATUTE OF LIMITATIONS

2 BASED ON NEW INFORMATION.—If a sup3 plemental environmental impact statement 

4 is required under the regulations of a Fed5 eral agency, a claim for judicial review of 

6 the supplemental environmental impact 

7 statement shall be barred unless it is filed 

8 not later than the earlier of— 

9 ‘‘(I) 150 days after the publica10 tion of a notice in the Federal Reg11 ister that the supplemental environ12 mental impact statement is final; and 

13 ‘‘(II) if applicable, an earlier date 

14 after which judicial review is barred 

15 that is specified in the Federal law 

16 pursuant to which the judicial review 

17 is allowed. 

18 ‘‘(C) SAVINGS CLAUSE.—Nothing in this 

19 paragraph creates a right to judicial review. 

20 ‘‘(3) REMEDIES.— 

21 ‘‘(A) PRELIMINARY INJUNCTIONS AND

22 TEMPORARY RESTRAINING ORDERS.— 

23 ‘‘(i) IN GENERAL.—Subject to clause 

24 (ii), in a motion for a temporary restrain25 ing order or preliminary injunction against 


pamtmann on DSKBC07HB2PROD with BILLS
6 

•S 716 IS

1 a Federal agency or project sponsor in a 

2 claim arising under Federal law seeking ju3 dicial review of any portion of the NEPA 

4 process, the plaintiff shall establish by 

5 clear and convincing evidence that— 

6 ‘‘(I) the plaintiff is likely to suc7 ceed on the merits; 

8 ‘‘(II) the plaintiff is likely to suf9 fer irreparable harm in the absence of 

10 the temporary restraining order or 

11 preliminary injunction, as applicable; 

12 ‘‘(III) the balance of equities is 

13 tipped in the favor of the plaintiff; 

14 and 

15 ‘‘(IV) the temporary restraining 

16 order or preliminary injunction is in 

17 the public interest. 

18 ‘‘(ii) ADDITIONAL REQUIREMENTS.— 

19 A court may not grant a motion described 

20 in clause (i) unless the court— 

21 ‘‘(I) makes a finding of extraor22 dinary circumstances that warrant the 

23 granting of the motion; 

24 ‘‘(II) considers the potential ef25 fects on public health, safety, and the 


pamtmann on DSKBC07HB2PROD with BILLS
7 

•S 716 IS

1 environment, and the potential for sig2 nificant negative effects on jobs re3 sulting from granting the motion; and 

4 ‘‘(III) notwithstanding any other 

5 provision of law, applies the require6 ments of Rule 65(c) of the Federal 

7 Rules of Civil Procedure. 

8 ‘‘(B) PERMANENT INJUNCTIONS.— 

9 ‘‘(i) IN GENERAL.—Subject to clause 

10 (ii), in a motion for a permanent injunc11 tion against a Federal agency or project 

12 sponsor a claim arising under Federal law 

13 seeking judicial review of any portion of 

14 the NEPA process, the plaintiff shall es15 tablish by clear and convincing evidence 

16 that— 

17 ‘‘(I) the plaintiff has suffered an 

18 irreparable injury; 

19 ‘‘(II) remedies available at law, 

20 including monetary damages, are in21 adequate to compensate for the in22 jury; 

23 ‘‘(III) considering the balance of 

24 hardship between the plaintiff and deVerDate Sep 11 2014 01:57 Apr 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S716.IS S716

pamtmann on DSKBC07HB2PROD with BILLS
8 

•S 716 IS

1 fendant, a remedy in equity is war2 ranted; 

3 ‘‘(IV) the public interest is not 

4 disserved by a permanent injunction; 

5 and 

6 ‘‘(V) if the error or omission of a 

7 Federal agency in a statement re8 quired under this title is the grounds 

9 for which the plaintiff is seeking judi10 cial review, the error or omission is 

11 likely to result in specific, irreparable 

12 damage to the environment. 

13 ‘‘(ii) ADDITIONAL SHOWING.—A court 

14 may not grant a motion described in clause 

15 (i) unless— 

16 ‘‘(I) the court makes a finding 

17 that extraordinary circumstances exist 

18 that warrant the granting of the mo19 tion; and 

20 ‘‘(II) the permanent injunction 

21 is— 

22 ‘‘(aa) as narrowly tailored as 

23 possible to correct the injury; and 


pamtmann on DSKBC07HB2PROD with BILLS
9 

•S 716 IS

1 ‘‘(bb) the least intrusive 

2 means necessary to correct the 

3 injury.’’. 

4 (b) ATTORNEY FEES IN ENVIRONMENTAL LITIGA5 TION.— 

6 (1) ADMINISTRATIVE PROCEDURE.—Section 

7 504(b)(1) of title 5, United States Code, is amend8 ed— 

9 (A) in subparagraph (E), by striking 

10 ‘‘and’’ at the end; 

11 (B) in subparagraph (F), by striking the 

12 period at the end and inserting ‘‘; and’’; and 

13 (C) by adding at the end the following: 

14 ‘‘(G) ‘special factor’ does not include knowl15 edge, expertise, or skill in environmental litigation.’’. 

16 (2) UNITED STATES AS PARTY.—Section 

17 2412(d)(2) of title 28, United States Code, is 

18 amended— 

19 (A) in subparagraph (H), by striking 

20 ‘‘and’’ at the end; 

21 (B) in subparagraph (I), by striking the 

22 period at the end and inserting ‘‘; and’’; and 

23 (C) by adding at the end the following: 


pamtmann on DSKBC07HB2PROD with BILLS
10 

•S 716 IS

1 ‘‘(J) ‘special factor’ does not include 

2 knowledge, expertise, or skill in environmental 

3 litigation.’’. 

Æ 


pamtmann on DSKBC07HB2PROD with BILLS