II 

116TH CONGRESS 

2D SESSION S. 4591 

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 

SEPTEMBER 16, 2020 

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 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 Reform Act of 2020’’. 

6 SEC. 2. AGENCY PROCESS 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 


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

2 4334) the following: 

3 ‘‘SEC. 105. AGENCY PROCESS REFORMS. 

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

5 ‘‘(1) ENVIRONMENTAL ASSESSMENT.—The 

6 term ‘environmental assessment’ has the meaning 

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

8 Federal Regulations (or a successor regulation). 

9 ‘‘(2) ENVIRONMENTAL IMPACT STATEMENT.— 

10 The term ‘environmental impact statement’ means a 

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

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

13 agency’ includes a State that has assumed responsi14 bility under section 327 of title 23, United States 

15 Code. 

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

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

18 head of an applicable State agency of a State that 

19 has assumed responsibility under section 327 of title 

20 23, United States Code. 

21 ‘‘(5) NEPA PROCESS.— 

22 ‘‘(A) IN GENERAL.—The term ‘NEPA 

23 process’ means the entirety of every process, 

24 analysis, or other measure, including an envi25 ronmental impact statement, required to be carVerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591

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1 ried out by a Federal agency under this title be2 fore the agency undertakes a proposed action. 

3 ‘‘(B) PERIOD.—For purposes of subpara4 graph (A), the NEPA process— 

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

6 head of a Federal agency receives an appli7 cation for a proposed action from a project 

8 sponsor; and 

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

10 Federal agency issues, with respect to the 

11 proposed action— 

12 ‘‘(I) a record of decision, includ13 ing, if necessary, a revised record of 

14 decision; 

15 ‘‘(II) a finding of no significant 

16 impact; or 

17 ‘‘(III) a categorical exclusion 

18 under this title. 

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

20 sponsor’ means a Federal agency or other entity, in21 cluding a private or public-private entity, that seeks 

22 approval of a proposed action. 

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

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


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1 ‘‘(1) consider whether a proposed action or an 

2 alternative to the proposed action considered by the 

3 head of the Federal agency, including the design, en4 vironmental impact, mitigation measures, or adapta5 tion measures of the proposed action or alternative 

6 to the proposed action, has an effect on climate 

7 change; 

8 ‘‘(2) with respect to a proposed action or an al9 ternative to the proposed action considered by the 

10 head of the Federal agency, consider the effects of 

11 the emission of greenhouse gases on climate change; 

12 ‘‘(3) consider an alternative to the proposed ac13 tion if the proposed action is not technically or eco14 nomically feasible to the project sponsor; or 

15 ‘‘(4) consider an alternative to the proposed ac16 tion that is not within the jurisdiction of the Federal 

17 agency. 

18 ‘‘(c) ENVIRONMENTAL DOCUMENTS.— 

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

20 NEPA process for a proposed action that requires 

21 the preparation of an environmental impact state22 ment, the head of a Federal agency shall produce for 

23 the proposed action not more than 1— 

24 ‘‘(A) environmental impact statement; 


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1 ‘‘(B) if necessary, environmental assess2 ment; and 

3 ‘‘(C) record of decision. 

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

5 NEPA process for a proposed action that does not 

6 require the preparation of an environmental impact 

7 statement, the head of a Federal agency shall 

8 produce for the proposed action not more than 1— 

9 ‘‘(A) environmental assessment; or 

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

11 ‘‘(d) CATEGORICAL EXCLUSIONS.— 

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

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

14 head of a Federal agency may, without further ap15 proval, use a categorical exclusion under this title 

16 that has been approved by— 

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

18 ‘‘(ii) the Council on Environmental Qual19 ity; or 

20 ‘‘(B) an Act of Congress. 

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

22 agency may use a categorical exclusion described in 

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

24 ‘‘(A) carefully reviews the description of 

25 the proposed action to ensure that it fits within 


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1 the category of actions described in the categor2 ical exclusion; and 

3 ‘‘(B) considers the circumstances associ4 ated with the proposed action to ensure that 

5 there are no extraordinary circumstances that 

6 warrant the preparation of an environmental 

7 assessment or an environmental impact state8 ment. 

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

10 head of a Federal agency determines that extraor11 dinary circumstances are present with respect to a 

12 proposed action, the head of the Federal agency 

13 shall— 

14 ‘‘(A) consider whether mitigating cir15 cumstances or other conditions are sufficient to 

16 avoid significant effects of the proposed action; 

17 and 

18 ‘‘(B) if the head of the Federal agency de19 termines that those significant effects can be 

20 avoided, apply a categorical exclusion to the 

21 proposed action. 

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

23 QUALIFIED 3RD PARTIES; UNEXPECTED CIR24 CUMSTANCES.— 


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

2 process for a proposed action— 

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

4 a Federal agency shall— 

5 ‘‘(i) use any applicable findings and 

6 research from a prior NEPA process of 

7 any Federal agency; and 

8 ‘‘(ii) incorporate the findings and re9 search described in clause (i) into any ap10 plicable analysis under the NEPA process; 

11 and 

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

13 environmental impact statement, environmental 

14 assessment, or other environmental document 

15 to achieve compliance with this title— 

16 ‘‘(i) an environmental document pre17 pared under the law of the applicable State 

18 if the head of the Federal agency deter19 mines that the environmental laws of the 

20 applicable State— 

21 ‘‘(I) provide the same level of en22 vironmental analysis as the analysis 

23 required under this title; and 

24 ‘‘(II) allow for the opportunity of 

25 public comment; or 


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1 ‘‘(ii) subject to paragraph (3), an en2 vironmental document prepared by a quali3 fied third party chosen by the project spon4 sor, at the expense of the project sponsor, 

5 if the head of the Federal agency— 

6 ‘‘(I) provides oversight of the 

7 preparation of the environmental doc8 ument by the third party; and 

9 ‘‘(II) independently evaluates the 

10 environmental document for the com11 pliance of the environmental document 

12 with this title. 

13 ‘‘(2) REQUIREMENT FOR THE REUSE OF FIND14 INGS AND RESEARCH.—The head of a Federal agen15 cy may reuse the applicable findings and research 

16 described in paragraph (1)(A) if— 

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

18 the Federal agency is seeking to reuse the find19 ings and research was in close geographic prox20 imity to the proposed action; and 

21 ‘‘(ii) the head of the Federal agency deter22 mines that the conditions under which the ap23 plicable findings and research were issued have 

24 not substantially changed; or 


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

2 the Federal agency is seeking to reuse the find3 ings and research was not in close geographic 

4 proximity to the proposed action; and 

5 ‘‘(ii) the head of the Federal agency deter6 mines that the proposed action has similar 

7 issues or decisions as the project. 

8 ‘‘(3) REQUIREMENTS FOR CREATION OF ENVI9 RONMENTAL DOCUMENT BY QUALIFIED 3RD PAR10 TIES.— 

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

12 party may prepare an environmental document 

13 intended to be adopted by a Federal agency as 

14 the environmental impact statement, environ15 mental assessment, or other environmental doc16 ument for a proposed action under paragraph 

17 (1)(B)(ii) if— 

18 ‘‘(i) the project sponsor submits a 

19 written request to the head of the applica20 ble Federal agency that the head of the 

21 Federal agency approve the qualified third 

22 party to create the document intended to 

23 be adopted by a Federal agency as the en24 vironmental impact statement, environVerDate Sep 11 2014 22:49 Sep 21, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591

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1 mental assessment, or other environmental 

2 document; and 

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

4 determines that— 

5 ‘‘(I) the third party is qualified 

6 to prepare the document; and 

7 ‘‘(II) the third party has no fi8 nancial or other interest in the out9 come of the proposed action. 

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

11 agency that receives a written request under 

12 subparagraph (A)(i) shall issue a written deci13 sion approving or denying the request not later 

14 than 30 days after the date on which the writ15 ten request is received. 

16 ‘‘(C) NO PRIOR WORK.—The head of a 

17 Federal agency may not adopt an environ18 mental document under paragraph (1)(B)(ii) if 

19 the qualified third party began preparing the 

20 document prior to the date on which the head 

21 of the Federal agency issues the written deci22 sion under subparagraph (B) approving the re23 quest. 

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

25 agency issues a written decision denying the reVerDate Sep 11 2014 00:35 Sep 23, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4591.IS S4591

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1 quest under subparagraph (A)(i), the head of 

2 the Federal agency shall submit to the project 

3 sponsor with the written decision the findings 

4 that served as the basis of the denial. 

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

6 carrying out a proposed action after the completion 

7 of the NEPA process for that proposed action, a 

8 Federal agency or project sponsor encounters a new 

9 or unexpected circumstance or condition that may 

10 require the reevaluation of the proposed action 

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

12 responsibility for carrying out the NEPA process for 

13 the proposed action shall— 

14 ‘‘(A) consider whether mitigating the new 

15 or unexpected circumstance or condition is suf16 ficient to avoid significant effects that may re17 sult from the circumstance or condition; and 

18 ‘‘(B) if the head of the Federal agency de19 termines under subparagraph (A) that the sig20 nificant effects that result from the cir21 cumstance or condition can be avoided, mitigate 

22 the circumstance or condition without carrying 

23 out the NEPA process again. 

24 ‘‘(f) MULTI-AGENCY PROJECTS.— 

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


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1 ‘‘(A) COOPERATING AGENCY.—The term 

2 ‘cooperating agency’ means a Federal agency 

3 involved in a proposed action that— 

4 ‘‘(i) is not the lead agency; and 

5 ‘‘(ii) has the jurisdiction or special ex6 pertise such that the Federal agency needs 

7 to be consulted— 

8 ‘‘(I) to use a categorical exclu9 sion; or 

10 ‘‘(II) to prepare an environ11 mental assessment or environmental 

12 impact statement, as applicable. 

13 ‘‘(B) LEAD AGENCY.—The term ‘lead 

14 agency’ means the Federal agency selected 

15 under paragraph (2)(A). 

16 ‘‘(2) AGENCY DESIGNATION.— 

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

18 NEPA process for a proposed action that re19 quires authorization from multiple Federal 

20 agencies, the heads of the applicable Federal 

21 agencies shall determine the lead agency for the 

22 proposed action. 

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

24 agency may invite any relevant State, local, or 


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1 Tribal agency with Federal authorization deci2 sion responsibility to be a cooperating agency. 

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

4 The lead agency for a proposed action shall— 

5 ‘‘(A) as soon as practicable and in con6 sultation with the cooperating agencies, deter7 mine whether a proposed action requires the 

8 preparation of an environmental impact state9 ment; and 

10 ‘‘(B) if the head of the lead agency deter11 mines under subparagraph (A) that an environ12 mental impact statement is necessary— 

13 ‘‘(i) be responsible for coordinating 

14 the preparation of an environmental im15 pact statement; 

16 ‘‘(ii) provide cooperating agencies with 

17 an opportunity to review and contribute to 

18 the preparation of the environmental im19 pact statement and environmental assess20 ment, as applicable, of the proposed action, 

21 except that the cooperating agency shall 

22 limit comments to issues within the special 

23 expertise or jurisdiction of the cooperating 

24 agency; and 


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

2 soon as practicable and in consultation 

3 with the cooperating agencies, determine 

4 the range of alternatives to be considered 

5 for the proposed action. 

6 ‘‘(4) ENVIRONMENTAL DOCUMENTS.—In car7 rying out the NEPA process for a proposed action, 

8 the lead agency shall prepare not more than 1 of 

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

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

11 ‘‘(A) in consultation with cooperating 

12 agencies; and 

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

14 ‘‘(5) PROHIBITIONS.— 

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

16 may not evaluate an alternative to the proposed 

17 action that has not been determined to be with18 in the range of alternatives considered under 

19 paragraph (3)(B)(iii). 

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

21 submits to the lead agency an evaluation of an 

22 alternative that does not meet the requirements 

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

24 alternative from the environmental impact 

25 statement. 


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1 ‘‘(g) REPORTS.— 

2 ‘‘(1) NEPA DATA.— 

3 ‘‘(A) IN GENERAL.—The head of each 

4 Federal agency that carries out the NEPA 

5 process shall carry out a process to track, and 

6 annually submit to Congress a report con7 taining, the information described in subpara8 graph (B). 

9 ‘‘(B) INFORMATION DESCRIBED.—The in10 formation referred to in subparagraph (A) is, 

11 with respect to the Federal agency issuing the 

12 report under that subparagraph— 

13 ‘‘(i) the number of proposed actions 

14 for which a categorical exclusion was 

15 issued during the reporting period; 

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

17 agency took to issue the categorical exclu18 sions described in clause (i); 

19 ‘‘(iii) the number of proposed actions 

20 pending on the date on which the report is 

21 submitted for which the issuance of a cat22 egorical exclusion is pending; 

23 ‘‘(iv) the number of proposed actions 

24 for which an environmental assessment 

25 was issued during the reporting period; 


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

2 agency took to complete each environ3 mental assessment described in clause (iv); 

4 ‘‘(vi) the number of proposed actions 

5 pending on the date on which the report is 

6 submitted for which an environmental as7 sessment is being drafted; 

8 ‘‘(vii) the number of proposed actions 

9 for which an environmental impact state10 ment was issued during the reporting pe11 riod; 

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

13 agency took to complete each environ14 mental impact statement described in 

15 clause (vii); and 

16 ‘‘(ix) the number of proposed actions 

17 pending on the date on which the report is 

18 submitted for which an environmental im19 pact statement is being drafted. 

20 ‘‘(2) NEPA COSTS.— 

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

22 after the date of enactment of this subsection, 

23 the Chair of the Council on Environmental 

24 Quality and the Director of the Office of Man25 agement and Budget shall jointly develop a 


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1 methodology to assess the comprehensive costs 

2 of the NEPA process. 

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

4 Federal agency that carries out the NEPA 

5 process shall— 

6 ‘‘(i) adopt the methodology developed 

7 under subparagraph (A); and 

8 ‘‘(ii) use the methodology developed 

9 under subparagraph (A) to annually sub10 mit to Congress a report describing— 

11 ‘‘(I) the comprehensive cost of 

12 the NEPA process for each proposed 

13 action that was carried out within the 

14 reporting period; and 

15 ‘‘(II) for a proposed action for 

16 which the head of the Federal agency 

17 is still completing the NEPA process 

18 at the time the report is submitted— 

19 ‘‘(aa) the amount of money 

20 expended to date to carry out the 

21 NEPA process for the proposed 

22 action; and 

23 ‘‘(bb) an estimate of the re24 maining costs before the NEPA 


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1 process for the proposed action is 

2 complete.’’. 

3 (b) PROHIBITION ON GUIDANCE.—No Federal agen4 cy, including the Council on Environmental Quality, may 

5 reissue the final guidance of the Council on Environmental 

6 Quality entitled ‘‘Final Guidance for Federal Departments 

7 and Agencies on Consideration of Greenhouse Gas Emis8 sions and the Effects of Climate Change in National Envi9 ronmental Policy Act Reviews’’ (81 Fed. Reg. 51866 (Au10 gust 5, 2016)) or substantially similar guidance unless au11 thorized by an Act of Congress. 

Æ 


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