I 

116TH CONGRESS 

2D SESSION H. R. 8333 

To amend the National Environmental Policy Act of 1969 to clarify ambiguous provisions, align the Act with relevant case law, reflect modern 

technologies, optimize interagency coordination, and facilitate a more 

efficient, effective, and timely environmental review process. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 22, 2020 

Mr. GRAVES of Louisiana (for himself, Mr. MCCARTHY, Mr. SCALISE, Mr. 

WALDEN, Mr. BISHOP of Utah, Mr. GRAVES of Missouri, Mr. LUCAS, Ms. 

GRANGER, Mr. COLE, Mr. COMER, Mr. YOUNG, Ms. CHENEY, Mr. LAMBORN, Mr. JOHNSON of Louisiana, Mr. STAUBER, Mr. CURTIS, Mr. 

GOSAR, Mr. KEVIN HERN of Oklahoma, Mr. COOK, Mr. MCCLINTOCK, 

Mr. WESTERMAN, Mr. RODNEY DAVIS of Illinois, Mr. NEWHOUSE, Mr. 

CARTER of Georgia, Mrs. RADEWAGEN, Mr. FULCHER, and Mr. HICE of 

Georgia) introduced the following bill; which was referred to the Committee on Natural Resources 

A BILL 

To amend the National Environmental Policy Act of 1969 

to clarify ambiguous provisions, align the Act with relevant case law, reflect modern technologies, optimize 

interagency coordination, and facilitate a more efficient, 

effective, and timely environmental review process. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘BUILDER Act of 

3 2020’’ or the ‘‘Building United States Infrastructure 

4 through Limited Delays and Efficient Reviews Act of 

5 2020’’. 

6 SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969. 

7 (a) PARAGRAPH (2) OF SECTION 102.—Section 

8 102(2) of the National Environmental Policy Act of 1969 

9 (42 U.S.C. 4332(2)) is amended— 

10 (1) in subparagraph (A), by striking ‘‘insure’’ 

11 and inserting ‘‘ensure’’; 

12 (2) in subparagraph (B), by striking ‘‘insure’’ 

13 and inserting ‘‘ensure’’; 

14 (3) in subparagraph (C)— 

15 (A) by inserting ‘‘consistent with the provi16 sions of this Act and except as provided by 

17 other provisions of law,’’ before ‘‘include in 

18 every’’; 

19 (B) by striking clauses (i) through (v) and 

20 inserting the following: 

21 ‘‘(i) reasonably foreseeable environmental 

22 effects with a reasonably close causal relation23 ship to the proposed agency action; 

24 ‘‘(ii) any reasonably foreseeable adverse en25 vironmental effects which cannot be avoided 

26 should the proposal be implemented; 


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1 ‘‘(iii) a reasonable number of alternatives 

2 to the proposed agency action that are tech3 nically and economically feasible, are within the 

4 jurisdiction of the agency, meet the purpose and 

5 need of the proposed agency action, and, where 

6 applicable, meet the goals of the applicant; 

7 ‘‘(iv) the relationship between local short8 term uses of man’s environment and the main9 tenance and enhancement of long-term produc10 tivity; and 

11 ‘‘(v) any irreversible and irretrievable com12 mitments of Federal resources which would be 

13 involved in the proposed agency action should it 

14 be implemented.’’; and 

15 (C) by striking ‘‘the responsible Federal 

16 official’’ and inserting ‘‘the head of the lead 

17 agency’’; 

18 (4) in subparagraph (D), by striking ‘‘Any’’ 

19 and inserting ‘‘any’’; 

20 (5) by redesignating subparagraphs (D) 

21 through (I) as subparagraphs (F) through (K), re22 spectively; 

23 (6) by inserting after subparagraph (C) the fol24 lowing: 


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1 ‘‘(D) ensure the professional integrity, including 

2 scientific integrity, of the discussion and analysis in 

3 an environmental document; 

4 ‘‘(E) make use of reliable existing data and re5 sources in carrying out this Act;’’; 

6 (7) in subparagraph (G), as amended, by in7 serting ‘‘consistent with the provisions of this Act,’’ 

8 before ‘‘study,’’; and 

9 (8) in subparagraph (H), as amended, by in10 serting ‘‘consistent with the provisions of this Act’’ 

11 before ‘‘recognize’’. 

12 (b) NEW SECTIONS.—Title I of the National Envi13 ronmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

14 is amended by adding at the end the following: 

15 ‘‘SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF 

16 REVIEW. 

17 ‘‘(a) THRESHOLD DETERMINATIONS.—An agency is 

18 not required to prepare an environmental document with 

19 respect to a proposed agency action if— 

20 ‘‘(1) such action is not a final agency action 

21 within the meaning of such term in chapter 5 of title 

22 5, United States Code; 

23 ‘‘(2) such proposed agency action is covered by 

24 a categorical exclusion established by a Federal 

25 agency; 


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1 ‘‘(3) the preparation of such document would 

2 clearly and fundamentally conflict with the require3 ments of another provision of law; 

4 ‘‘(4) the proposed agency action is, in whole or 

5 in part, a nondiscretionary action with respect to 

6 which such agency does not have authority to take 

7 environmental factors into consideration in deter8 mining whether to take the proposed action; or 

9 ‘‘(5) the proposed agency action is an action for 

10 which such agency’s compliance with another stat11 ute’s requirements serve the same function as the 

12 requirements of this Act with respect to such action. 

13 ‘‘(b) LEVELS OF REVIEW.— 

14 ‘‘(1) ENVIRONMENTAL IMPACT STATEMENT.— 

15 An agency shall issue an environmental impact 

16 statement with respect to a proposed agency action 

17 that has a significant effect on the quality of the 

18 human environment. 

19 ‘‘(2) ENVIRONMENTAL ASSESSMENT.—An agen20 cy shall issue an environmental assessment with re21 spect to a proposed agency action that is not likely 

22 to have a significant effect on the quality of the 

23 human environment, or if the significance of such ef24 fect is unknown. Such environmental assessment 

25 shall be a concise public document prepared by a 


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1 Federal agency to provide notice to the public for 

2 the basis of such agency’s finding of no significant 

3 impact. 

4 ‘‘(3) SOURCES OF INFORMATION.—In making a 

5 determination under this subsection, an agency— 

6 ‘‘(A) may make use of any reliable data 

7 source; and 

8 ‘‘(B) is not required to undertake new sci9 entific or technical research. 

10 ‘‘SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS. 

11 ‘‘(a) LEAD AGENCY.— 

12 ‘‘(1) DESIGNATION.—If there are two or more 

13 involved Federal agencies, such agencies shall deter14 mine, by letter or memorandum, which agency shall 

15 be the lead agency based on consideration of the fol16 lowing factors: 

17 ‘‘(A) Magnitude of agency’s involvement. 

18 ‘‘(B) Project approval or disapproval au19 thority. 

20 ‘‘(C) Expertise concerning the action’s en21 vironmental effects. 

22 ‘‘(D) Duration of agency’s involvement. 

23 ‘‘(E) Sequence of agency’s involvement. 

24 ‘‘(2) JOINT LEAD AGENCIES.—In making a de25 termination under paragraph (1), the involved FedVerDate Sep 11 2014 00:11 Oct 04, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8333.IH H8333

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1 eral agencies may, in addition to a Federal agency, 

2 appoint such Federal, State, Tribal, or local agencies 

3 as joint lead agencies as the involved Federal agen4 cies shall determine appropriate. Joint lead agencies 

5 shall jointly fulfill the role described in paragraph 

6 (3). 

7 ‘‘(3) ROLE.—A lead agency shall, with respect 

8 to a proposed agency action— 

9 ‘‘(A) supervise the preparation of an envi10 ronmental document if, with respect to such 

11 proposed agency action, there is more than one 

12 involved Federal agency; 

13 ‘‘(B) request the participation of each co14 operating agency; 

15 ‘‘(C) in preparing an environmental docu16 ment, give consideration to any analysis or pro17 posal created by a cooperating agency with ju18 risdiction by law or special expertise; 

19 ‘‘(D) develop a schedule, in consultation 

20 with each involved cooperating agency and such 

21 other entities as the lead agency determines ap22 propriate, for completion of any environmental 

23 review, permit, or authorization required to 

24 carry out the proposed agency action; 


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1 ‘‘(E) if the lead agency determines that a 

2 review, permit, or authorization will not be com3 pleted in accordance with the schedule devel4 oped under subparagraph (D), notify the agen5 cy responsible for issuing such review, permit, 

6 or authorization of the discrepancy and request 

7 that such agency take such measures as such 

8 agency determines appropriate to comply with 

9 such schedule; and 

10 ‘‘(F) meet with a cooperating agency that 

11 requests such a meeting. 

12 ‘‘(4) COOPERATING AGENCY.—The lead agency 

13 may, with respect to a proposed agency action, des14 ignate any involved Federal agency or a State, Trib15 al, or local agency as a cooperating agency. A co16 operating agency may, not later than a date speci17 fied by the lead agency, submit comments to the 

18 lead agency. Such comments shall be limited to mat19 ters relating to the proposed agency action with re20 spect to which such agency has special expertise or 

21 jurisdiction by law with respect to an environmental 

22 issue. 

23 ‘‘(5) REQUEST FOR DESIGNATION.—Any Fed24 eral, State, Tribal, or local agency or person that is 

25 substantially affected by the lack of a designation of 


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1 a lead agency with respect to a proposed agency ac2 tion under paragraph (1) may submit a written re3 quest for such a designation to an involved Federal 

4 agency. An agency that receives a request under this 

5 paragraph shall transmit such request to each in6 volved Federal agency and to the Council. 

7 ‘‘(6) COUNCIL DESIGNATION.— 

8 ‘‘(A) REQUEST.—Not earlier than 45 days 

9 after the date on which a request is submitted 

10 under paragraph (5), if no designation has been 

11 made under paragraph (1), a Federal, State, 

12 Tribal, or local agency or person that is sub13 stantially affected by the lack of a designation 

14 of a lead agency may request that the Council 

15 designate a lead agency. Such request shall con16 sist of— 

17 ‘‘(i) a precise description of the nature 

18 and extent of the proposed agency action; 

19 and 

20 ‘‘(ii) a detailed statement with respect 

21 to each involved Federal agency and each 

22 factor listed in paragraph (1) regarding 

23 which agency should serve as lead agency. 


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1 ‘‘(B) TRANSMISSION.—The Council shall 

2 transmit a request received under subparagraph 

3 (A) to each involved Federal agency. 

4 ‘‘(C) RESPONSE.—An involved Federal 

5 agency may, not later than 20 days after the 

6 date of the submission of a request under sub7 paragraph (A), submit to the Council a re8 sponse to such request. 

9 ‘‘(D) DESIGNATION.—Not later than 40 

10 days after the date of the submission of a re11 quest under subparagraph (A), the Council 

12 shall designate the lead agency with respect to 

13 the relevant proposed agency action. 

14 ‘‘(b) ONE DOCUMENT.—To the extent practicable, if 

15 there are 2 or more involved Federal agencies with respect 

16 to a proposed agency action and the lead agency has deter17 mined that section 102(2)(C) requires the issuance of an 

18 environmental document, such requirement shall be 

19 deemed satisfied with respect to all involved Federal agen20 cies if the lead agency issues such an environmental docu21 ment. 

22 ‘‘(c) REQUEST FOR PUBLIC COMMENT.—Each notice 

23 of intent to prepare an environmental impact statement 

24 under section 102 shall include a request for public com25 ment on potential alternatives or impacts and on relevant 


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1 information, studies, or analyses with respect to the pro2 posed agency action. 

3 ‘‘(d) STATEMENT OF PURPOSE AND NEED.—Each 

4 environmental impact statement shall include a statement 

5 of purpose and need that briefly summarizes the under6 lying purpose and need for the proposed agency action. 

7 ‘‘(e) ESTIMATED TOTAL COST.—The cover sheet for 

8 each environmental impact statement shall include a state9 ment of the estimated total cost of preparing such environ10 mental impact statement, including the costs of agency 

11 full-time equivalent personnel hours, contractor costs, and 

12 other direct costs. 

13 ‘‘(f) SPONSOR PREPARATION.—A lead agency may 

14 allow a project sponsor to prepare an environmental as15 sessment or an environmental impact statement, if such 

16 agency provides such sponsor with appropriate guidance 

17 and assists in the preparation. The lead agency shall inde18 pendently evaluate the environmental document and shall 

19 take responsibility for the contents upon adoption. 

20 ‘‘(g) DEADLINES.— 

21 ‘‘(1) ISSUANCE OF ENVIRONMENTAL IMPACT

22 STATEMENT.—Except as provided in paragraph (2), 

23 with respect to a proposed agency action, a lead 

24 agency shall complete— 


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1 ‘‘(A) the environmental impact statement 

2 not later than the date that is 2 years after the 

3 date on which such agency determines that sec4 tion 102(2)(C) requires the issuance of an envi5 ronmental impact statement with respect to 

6 such action; or 

7 ‘‘(B) the environmental assessment not 

8 later than the date that is 1 year after the date 

9 on which such agency determines that such 

10 102(2)(C) requires the issuance of an environ11 mental assessment with respect to such action. 

12 ‘‘(2) DELAY.—A lead agency that determines it 

13 is not able to meet the deadline described in para14 graph (1) may approve a delay of such deadline in 

15 writing and establish a new timeline that provides 

16 only so much additional time as is necessary to com17 plete such environmental impact statement or envi18 ronmental assessment. 

19 ‘‘SEC. 108. JUDICIAL REVIEW. 

20 ‘‘(a) LIMITATIONS ON CLAIMS.—Notwithstanding 

21 any other provision of law, a claim arising under Federal 

22 law seeking judicial review of compliance with this Act, 

23 of a determination made under this Act, or of Federal ac24 tion resulting from a determination made under this Act, 

25 shall be barred unless— 


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1 ‘‘(1) in the case of a claim pertaining to a pro2 posed agency action for which— 

3 ‘‘(A) an environmental document was pre4 pared and an opportunity for comment was pro5 vided; 

6 ‘‘(B) the claim is filed by a party that par7 ticipated in the administrative proceedings re8 garding such environmental document; or 

9 ‘‘(C) the claim is filed by a party that sub10 mitted a comment during the public comment 

11 period for such administrative proceedings and 

12 such comment was sufficiently detailed to put 

13 the lead agency on notice of the issue upon 

14 which the party seeks judicial review; 

15 ‘‘(2) except as provided in subsection (b), such 

16 claim is filed not later than 120 days after the date 

17 of publication of a notice in the Federal Register of 

18 agency intent to carry out the proposed agency ac19 tion; 

20 ‘‘(3) such claim is filed after the issuance of a 

21 record of decision or other final agency action with 

22 respect to the relevant proposed agency action; and 

23 ‘‘(4) such claim does not challenge the estab24 lishment of a categorical exclusion under section 

25 102. 


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1 ‘‘(b) SUPPLEMENTAL ENVIRONMENTAL IMPACT

2 STATEMENT.— 

3 ‘‘(1) SEPARATE FINAL AGENCY ACTION.—The 

4 issuance of a supplemental environmental impact 

5 statement shall be considered a final agency action 

6 for the purposes of chapter 5 of title 5, United 

7 States Code, separate from the issuance of any pre8 vious environmental impact statement with respect 

9 to the same proposed agency action. 

10 ‘‘(2) DEADLINE FOR FILING A CLAIM.—A claim 

11 seeking judicial review of a supplemental environ12 mental review issued under section 102(2)(C) shall 

13 be barred unless— 

14 ‘‘(A) such claim is filed within 120 days of 

15 the date on which such supplemental environ16 mental impact statement is issued; and 

17 ‘‘(B) such claim is based on information 

18 contained in such supplemental environmental 

19 impact statement that was not contained in a 

20 previous environmental document pertaining to 

21 the same proposed agency action. 

22 ‘‘(c) PROHIBITION ON INJUNCTIVE RELIEF.—Not23 withstanding any other provision of law, a violation of this 

24 Act shall not constitute the basis for injunctive relief. 


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1 ‘‘(d) RULE OF CONSTRUCTION.—Nothing in this sub2 section shall be construed to create a right of judicial re3 view or place any limit on filing a claim with respect to 

4 the violation of the terms of a permit, license, or approval. 

5 ‘‘SEC. 109. DEFINITIONS. 

6 ‘‘In this title: 

7 ‘‘(1) CATEGORICAL EXCLUSION.—The term 

8 ‘categorical exclusion’ means a category of actions 

9 that a Federal agency has determined normally does 

10 not significantly affect the quality of the human en11 vironment within the meaning of section 102(2)(C). 

12 ‘‘(2) COOPERATING AGENCY.—The term ‘co13 operating agency’ means any Federal, State, Tribal, 

14 or local agency that has been designated as a co15 operating agency under section 107(a)(4). 

16 ‘‘(3) COUNCIL.—The term ‘Council’ means the 

17 Council on Environmental Quality established in 

18 title II. 

19 ‘‘(4) ENVIRONMENTAL ASSESSMENT.—The 

20 term ‘environmental assessment’ means an environ21 mental assessment prepared under section 

22 106(b)(2). 

23 ‘‘(5) ENVIRONMENTAL DOCUMENT.—The term 

24 ‘environmental document’ means an environmental 


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1 impact statement, an environmental assessment, or 

2 a finding of no significant impact. 

3 ‘‘(6) ENVIRONMENTAL IMPACT STATEMENT.— 

4 The term ‘environmental impact statement’ means a 

5 detailed written statement that is required by section 

6 102(2)(C) of this Act. 

7 ‘‘(7) FINDING OF NO SIGNIFICANT IMPACT.— 

8 The term ‘finding of no significant impact’ means a 

9 determination by a Federal agency that a proposed 

10 agency action does not require the issuance of an en11 vironmental impact statement. 

12 ‘‘(8) INVOLVED FEDERAL AGENCY.—The term 

13 ‘involved Federal agency’ means an agency that, 

14 with respect to a proposed agency action— 

15 ‘‘(A) proposed such action; or 

16 ‘‘(B) is involved in such action because 

17 such action is directly related, through func18 tional interdependence or geographic proximity, 

19 in an action such agency has taken or has pro20 posed to take. 

21 ‘‘(9) LEAD AGENCY.—The term ‘lead agency’ 

22 means, with respect to a proposed agency action— 

23 ‘‘(A) the agency that proposed such action; 

24 or 


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1 ‘‘(B) if there are 2 or more involved Fed2 eral agencies with respect to such action, the 

3 agency designated under section 107(a). 

4 ‘‘(10) MAJOR FEDERAL ACTION.— 

5 ‘‘(A) IN GENERAL.—The term ‘major Fed6 eral action’ means an action that the agency 

7 carrying out such action determines is subject 

8 to Federal control and responsibility. 

9 ‘‘(B) EXCLUSION.—The term ‘major Fed10 eral action’ does not include— 

11 ‘‘(i) a non-Federal action with mini12 mal Federal funding or minimal Federal 

13 involvement where a Federal agency can14 not control the outcome of the project; 

15 ‘‘(ii) funding assistance solely in the 

16 form of general revenue sharing funds with 

17 no Federal agency control over the subse18 quent use of such funds; 

19 ‘‘(iii) loans, loan guarantees, or other 

20 forms of financial assistance where a Fed21 eral agency does not exercise sufficient 

22 control and responsibility over the effect of 

23 the action; 

24 ‘‘(iv) farm ownership and operating 

25 loan guarantees by the Farm Service 


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1 Agency pursuant to sections 305 and 311 

2 through 319 of the Consolidated Farmers 

3 Home Administration Act of 1961 (7 

4 U.S.C. 1925 and 1941 through 1949); 

5 ‘‘(v) business loan guarantees pro6 vided by the Small Business Administra7 tion pursuant to section 7(a) or (b) and of 

8 the Small Business Act (15 U.S.C. 

9 636(a)), or title V of the Small Business 

10 Investment Act of 1958 (15 U.S.C. 695 et 

11 seq.); or 

12 ‘‘(vi) bringing judicial or administra13 tive civil or criminal enforcement actions. 

14 ‘‘(11) REASONABLY FORESEEABLE.—The term 

15 ‘reasonably foreseeable’ means sufficiently likely to 

16 occur such that an individual of ordinary prudence 

17 would take such occurrence into account in reaching 

18 a decision.’’. 

Æ 


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