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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1577 Introduced in House (IH)]

<DOC>

118th CONGRESS
  1st Session
                                H. R. 1577

   To amend the National Environmental Policy Act of 1969 to clarify 
ambiguous provisions, reflect modern technologies, optimize interagency 
 coordination, and facilitate a more efficient, effective, and timely 
                     environmental review process.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 14, 2023

   Mr. Graves of Louisiana 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, reflect modern technologies, optimize interagency 
 coordination, and facilitate a more efficient, effective, and timely 
                     environmental review process.

    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 ``BUILDER Act of 2023'' or the 
``Building United States Infrastructure through Limited Delays and 
Efficient Reviews Act of 2023''.

SEC. 2. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969.

    (a) Paragraph (2) of Section 102.--Section 102(2) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)) is amended--
            (1) in subparagraph (A), by striking ``insure'' and 
        inserting ``ensure'';
            (2) in subparagraph (B), by striking ``insure'' and 
        inserting ``ensure'';
            (3) in subparagraph (C)--
                    (A) by inserting ``consistent with the provisions 
                of this Act and except as provided by other provisions 
                of law,'' before ``include in every'';
                    (B) by striking clauses (i) through (v) and 
                inserting the following:
                    ``(i) reasonably foreseeable environmental effects 
                with a reasonably close causal relationship to the 
                proposed agency action;
                    ``(ii) any reasonably foreseeable adverse 
                environmental effects which cannot be avoided should 
                the proposal be implemented;
                    ``(iii) a reasonable number of alternatives to the 
                proposed agency action, including an analysis of any 
                negative environmental impacts of not implementing the 
                proposed agency action in the case of a no action 
                alternative, that are technically and economically 
                feasible, are within the jurisdiction of the agency, 
                meet the purpose and need of the proposal, and, where 
                applicable, meet the goals of the applicant;
                    ``(iv) the relationship between local short-term 
                uses of man's environment and the maintenance and 
                enhancement of long-term productivity; and
                    ``(v) any irreversible and irretrievable 
                commitments of Federal resources which would be 
                involved in the proposed agency action should it be 
                implemented.''; and
                    (C) by striking ``the responsible Federal 
                official'' and inserting ``the head of the lead 
                agency'';
            (4) in subparagraph (D), by striking ``Any'' and inserting 
        ``any'';
            (5) by redesignating subparagraphs (D) through (I) as 
        subparagraphs (F) through (K), respectively;
            (6) by inserting after subparagraph (C) the following:
            ``(D) ensure the professional integrity, including 
        scientific integrity, of the discussion and analysis in an 
        environmental document;
            ``(E) make use of reliable existing data and resources in 
        carrying out this Act;'';
            (7) by amending subparagraph (G), as redesignated, to read 
        as follows:
            ``(G) consistent with the provisions of this Act, study, 
        develop, and describe technically and economically feasible 
        alternatives within the jurisdiction and authority of the 
        agency;''; and
            (8) in subparagraph (H), as amended, by inserting 
        ``consistent with the provisions of this Act,'' before 
        ``recognize''.
    (b) New Sections.--Title I of the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.) is amended by adding at the end the 
following:

``SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF REVIEW.

    ``(a) Threshold Determinations.--An agency is not required to 
prepare an environmental document with respect to a proposed agency 
action if--
            ``(1) the proposed agency action is not a final agency 
        action within the meaning of such term in chapter 5 of title 5, 
        United States Code;
            ``(2) the proposed agency action is covered by a 
        categorical exclusion established by the agency, another 
        Federal agency, or another provision of law;
            ``(3) the preparation of such document would clearly and 
        fundamentally conflict with the requirements of another 
        provision of law;
            ``(4) the proposed agency action is, in whole or in part, a 
        nondiscretionary action with respect to which such agency does 
        not have authority to take environmental factors into 
        consideration in determining whether to take the proposed 
        action;
            ``(5) the proposed agency action is a rulemaking that is 
        subject to section 553 of title 5, United States Code; or
            ``(6) the proposed agency action is an action for which 
        such agency's compliance with another statute's requirements 
        serve the same or similar function as the requirements of this 
        Act with respect to such action.
    ``(b) Levels of Review.--
            ``(1) Environmental impact statement.--An agency shall 
        issue an environmental impact statement with respect to a 
        proposed agency action that has a significant effect on the 
        quality of the human environment.
            ``(2) Environmental assessment.--An agency shall prepare an 
        environmental assessment with respect to a proposed agency 
        action that is not likely to have a significant effect on the 
        quality of the human environment, or if the significance of 
        such effect is unknown, unless the agency finds that a 
        categorical exclusion established by the agency, another 
        Federal agency, or another provision of law applies. Such 
        environmental assessment shall be a concise public document 
        prepared by a Federal agency to set forth the basis of such 
        agency's finding of no significant impact.
            ``(3) Sources of information.--In making a determination 
        under this subsection, an agency--
                    ``(A) may make use of any reliable data source; and
                    ``(B) is not required to undertake new scientific 
                or technical research.

``SEC. 107. TIMELY AND UNIFIED FEDERAL REVIEWS.

    ``(a) Lead Agency.--
            ``(1) Designation.--
                    ``(A) In general.--If there are two or more 
                involved Federal agencies, such agencies shall 
                determine, by letter or memorandum, which agency shall 
                be the lead agency based on consideration of the 
                following factors:
                            ``(i) Magnitude of agency's involvement.
                            ``(ii) Project approval or disapproval 
                        authority.
                            ``(iii) Expertise concerning the action's 
                        environmental effects.
                            ``(iv) Duration of agency's involvement.
                            ``(v) Sequence of agency's involvement.
                    ``(B) Joint lead agencies.--In making a 
                determination under subparagraph (A), the involved 
                Federal agencies may, in addition to a Federal agency, 
                appoint such Federal, State, Tribal, or local agencies 
                as joint lead agencies as the involved Federal agencies 
                shall determine appropriate. Joint lead agencies shall 
                jointly fulfill the role described in paragraph (2).
                    ``(C) Mineral projects.--This paragraph shall not 
                apply with respect to a mineral exploration or mine 
                permit.
            ``(2) Role.--A lead agency shall, with respect to a 
        proposed agency action--
                    ``(A) supervise the preparation of an environmental 
                document if, with respect to such proposed agency 
                action, there is more than one involved Federal agency;
                    ``(B) request the participation of each cooperating 
                agency at the earliest practicable time;
                    ``(C) in preparing an environmental document, give 
                consideration to any analysis or proposal created by a 
                cooperating agency with jurisdiction by law or a 
                cooperating agency with special expertise;
                    ``(D) develop a schedule, in consultation with each 
                involved cooperating agency, the applicant, and such 
                other entities as the lead agency determines 
                appropriate, for completion of any environmental 
                review, permit, or authorization required to carry out 
                the proposed agency action;
                    ``(E) if the lead agency determines that a review, 
                permit, or authorization will not be completed in 
                accordance with the schedule developed under 
                subparagraph (D), notify the agency responsible for 
                issuing such review, permit, or authorization of the 
                discrepancy and request that such agency take such 
                measures as such agency determines appropriate to 
                comply with such schedule; and
                    ``(F) meet with a cooperating agency that requests 
                such a meeting.
            ``(3) Cooperating agency.--The lead agency may, with 
        respect to a proposed agency action, designate any involved 
        Federal agency or a State, Tribal, or local agency as a 
        cooperating agency. A cooperating agency may, not later than a 
        date specified by the lead agency, submit comments to the lead 
        agency. Such comments shall be limited to matters relating to 
        the proposed agency action with respect to which such agency 
        has special expertise or jurisdiction by law with respect to an 
        environmental issue.
            ``(4) Request for designation.--Any Federal, State, Tribal, 
        or local agency or person that is substantially affected by the 
        lack of a designation of a lead agency with respect to a 
        proposed agency action under paragraph (1) may submit a written 
        request for such a designation to an involved Federal agency. 
        An agency that receives a request under this paragraph shall 
        transmit such request to each involved Federal agency and to 
        the Council.
            ``(5) Council designation.--
                    ``(A) Request.--Not earlier than 45 days after the 
                date on which a request is submitted under paragraph 
                (4), if no designation has been made under paragraph 
                (1), a Federal, State, Tribal, or local agency or 
                person that is substantially affected by the lack of a 
                designation of a lead agency may request that the 
                Council designate a lead agency. Such request shall 
                consist of--
                            ``(i) a precise description of the nature 
                        and extent of the proposed agency action; and
                            ``(ii) a detailed statement with respect to 
                        each involved Federal agency and each factor 
                        listed in paragraph (1) regarding which agency 
                        should serve as lead agency.
                    ``(B) Transmission.--The Council shall transmit a 
                request received under subparagraph (A) to each 
                involved Federal agency.
                    ``(C) Response.--An involved Federal agency may, 
                not later than 20 days after the date of the submission 
                of a request under subparagraph (A), submit to the 
                Council a response to such request.
                    ``(D) Designation.--Not later than 40 days after 
                the date of the submission of a request under 
                subparagraph (A), the Council shall designate the lead 
                agency with respect to the relevant proposed agency 
                action.
    ``(b) One Document.--
            ``(1) Document.--To the extent practicable, if there are 2 
        or more involved Federal agencies with respect to a proposed 
        agency action and the lead agency has determined that an 
        environmental document is required, such requirement shall be 
        deemed satisfied with respect to all involved Federal agencies 
        if the lead agency issues such an environmental document.
            ``(2) Consideration timing.--In developing an environmental 
        document for a proposed agency action, no involved Federal 
        agency shall be required to consider any information that 
        becomes available after the sooner of, as applicable--
                    ``(A) receipt of a complete application with 
                respect to such proposed agency action; or
                    ``(B) publication of a notice of intent or decision 
                to prepare an environmental impact statement for such 
                proposed agency action.
            ``(3) Scope of review.--In developing an environmental 
        document for a proposed agency action, the lead agency and any 
        other involved Federal agencies shall only consider the effects 
        of the proposed agency action that--
                    ``(A) occur on Federal land; or
                    ``(B) are subject to Federal control and 
                responsibility.
    ``(c) 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.
    ``(d) Statement of Purpose and Need.--Each environmental impact 
statement shall include a statement of purpose and need that briefly 
summarizes the underlying purpose and need for the proposed agency 
action.
    ``(e) Estimated Total Cost.--The cover sheet for each environmental 
impact statement shall include a statement of the estimated total cost 
of preparing such environmental impact statement, including the costs 
of agency full-time equivalent personnel hours, contractor costs, and 
other direct costs.
    ``(f) Page Limits.--
            ``(1) Environmental impact statements.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), an environmental impact statement 
                shall not exceed 150 pages, not including any citations 
                or appendices.
                    ``(B) 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.
            ``(2) Environmental assessments.--An environmental 
        assessment shall not exceed 75 pages, not including any 
        citations or appendices.
    ``(g) Sponsor Preparation.--A lead agency shall allow a project 
sponsor to prepare an environmental assessment or an environmental 
impact statement upon request of the project sponsor. Such agency may 
provide such sponsor with appropriate guidance and assist in the 
preparation. The lead agency shall independently evaluate the 
environmental document and shall take responsibility for the contents 
upon adoption.
    ``(h) Deadlines.--
            ``(1) In general.--Except as provided in paragraph (2), 
        with respect to a proposed agency action, a lead agency shall 
        complete, as applicable--
                    ``(A) the environmental impact statement not later 
                than the date that is 2 years after the sooner of, as 
                applicable--
                            ``(i) the date on which such agency 
                        determines that section 102(2)(C) requires the 
                        issuance of an environmental impact statement 
                        with respect to such action;
                            ``(ii) the date on which such agency 
                        notifies the applicant that the application to 
                        establish a right-of-way for such action is 
                        complete; and
                            ``(iii) the date on which such agency 
                        issues a notice of intent to prepare the 
                        environmental impact statement for such action; 
                        and
                    ``(B) the environmental assessment not later than 
                the date that is 1 year after the sooner of, as 
                applicable--
                            ``(i) the date on which such agency 
                        determines that section 106(b)(2) requires the 
                        preparation of an environmental assessment with 
                        respect to such action;
                            ``(ii) the date on which such agency 
                        notifies the applicant that the application to 
                        establish a right-of-way for such action is 
                        complete; and
                            ``(iii) the date on which such agency 
                        issues a notice of intent to prepare the 
                        environmental assessment for such action.
            ``(2) Delay.--A lead agency that determines it is not able 
        to meet the deadline described in paragraph (1) may extend such 
        deadline with the approval of the applicant. If the applicant 
        approves such an extension, the lead agency shall establish a 
        new deadline that provides only so much additional time as is 
        necessary to complete such environmental impact statement or 
        environmental assessment.
            ``(3) Expenditures for delay.--If a lead agency is unable 
        to meet the deadline described in paragraph (1) or extended 
        under paragraph (2), the lead agency must pay $100 per day, to 
        the extent funding is provided in advance in an appropriations 
        Act, out of the office of the head of the department of the 
        lead agency to the applicant starting on the first day 
        immediately following the deadline described in paragraph (1) 
        or extended under paragraph (2) up until the date that an 
        applicant approves a new deadline. This paragraph does not 
        apply when the lead agency misses a deadline solely due to 
        delays caused by litigation.
    ``(i) Report.--
            ``(1) In general.--The head of each lead agency shall 
        annually submit to the Committee on Natural Resources of the 
        House of Representatives and the Committee on Environment and 
        Public Works of the Senate a report that--
                    ``(A) identifies any environmental assessment and 
                environmental impact statement that such lead agency 
                did not complete by the deadline described in 
                subsection (h); and
                    ``(B) provides an explanation for any failure to 
                meet such deadline.
            ``(2) Inclusions.--Each report submitted under paragraph 
        (1) shall identify, as applicable--
                    ``(A) the office, bureau, division, unit, or other 
                entity within the Federal agency responsible for each 
                such environmental assessment and environmental impact 
                statement;
                    ``(B) the date on which--
                            ``(i) such lead agency notified the 
                        applicant that the application to establish a 
                        right-of-way for the major Federal action is 
                        complete;
                            ``(ii) such lead agency began the scoping 
                        for the major Federal action; or
                            ``(iii) such lead agency issued a notice of 
                        intent to prepare the environmental assessment 
                        or environmental impact statement for the major 
                        Federal action; and
                    ``(C) when such environmental assessment and 
                environmental impact statement is expected to be 
                complete.

``SEC. 108. JUDICIAL REVIEW.

    ``(a) Limitations on Claims.--Notwithstanding any other provision 
of law, a claim arising under Federal law seeking judicial review of 
compliance with this Act, of a determination made under this Act, or of 
Federal action resulting from a determination made under this Act, 
shall be barred unless--
            ``(1) in the case of a claim pertaining to a proposed 
        agency action for which--
                    ``(A) an environmental document was prepared and an 
                opportunity for comment was provided;
                    ``(B) the claim is filed by a party that 
                participated in the administrative proceedings 
                regarding such environmental document; and
                    ``(C) the claim--
                            ``(i) is filed by a party that submitted a 
                        comment during the public comment period for 
                        such administrative proceedings and such 
                        comment was sufficiently detailed to put the 
                        lead agency on notice of the issue upon which 
                        the party seeks judicial review; and
                            ``(ii) is related to such comment;
            ``(2) except as provided in subsection (b), such claim is 
        filed not later than 120 days after the date of publication of 
        a notice in the Federal Register of agency intent to carry out 
        the proposed agency action;
            ``(3) such claim is filed after the issuance of a record of 
        decision or other final agency action with respect to the 
        relevant proposed agency action;
            ``(4) such claim does not challenge the establishment or 
        use of a categorical exclusion under section 102; and
            ``(5) such claim concerns--
                    ``(A) an alternative included in the environmental 
                document; or
                    ``(B) an environmental effect considered in the 
                environmental document.
    ``(b) Supplemental Environmental Impact Statement.--
            ``(1) Separate final agency action.--The issuance of a 
        Federal action resulting from a final supplemental 
        environmental impact statement shall be considered a final 
        agency action for the purposes of chapter 5 of title 5, United 
        States Code, separate from the issuance of any previous 
        environmental impact statement with respect to the same 
        proposed agency action.
            ``(2) Deadline for filing a claim.--A claim seeking 
        judicial review of a Federal action resulting from a final 
        supplemental environmental review issued under section 
        102(2)(C) shall be barred unless--
                    ``(A) such claim is filed within 120 days of the 
                date on which a notice of the Federal agency action 
                resulting from a final supplemental environmental 
                impact statement is issued; and
                    ``(B) such claim is based on information contained 
                in such supplemental environmental impact statement 
                that was not contained in a previous environmental 
                document pertaining to the same proposed agency action.
    ``(c) Prohibition on Injunctive Relief.--Notwithstanding any other 
provision of law, a violation of this Act shall not constitute the 
basis for injunctive relief.
    ``(d) Rule of Construction.--Nothing in this section shall be 
construed to create a right of judicial review or place any limit on 
filing a claim with respect to the violation of the terms of a permit, 
license, or approval.
    ``(e) Remand.--Notwithstanding any other provision of law, no 
proposed agency action for which an environmental document is required 
shall be vacated or otherwise limited, delayed, or enjoined unless a 
court concludes allowing such proposed action will pose a risk of an 
imminent and substantial environmental harm and there is no other 
equitable remedy available as a matter of law.

``SEC. 109. DEFINITIONS.

    ``In this title:
            ``(1) Categorical exclusion.--The term `categorical 
        exclusion' means a category of actions that a Federal agency 
        has determined normally does not significantly affect the 
        quality of the human environment within the meaning of section 
        102(2)(C).
            ``(2) Cooperating agency.--The term `cooperating agency' 
        means any Federal, State, Tribal, or local agency that has been 
        designated as a cooperating agency under section 107(a)(3).
            ``(3) Council.--The term `Council' means the Council on 
        Environmental Quality established in title II.
            ``(4) Environmental assessment.--The term `environmental 
        assessment' means an environmental assessment prepared under 
        section 106(b)(2).
            ``(5) Environmental document.--The term `environmental 
        document' means an environmental impact statement, an 
        environmental assessment, or a finding of no significant 
        impact.
            ``(6) Environmental impact statement.--The term 
        `environmental impact statement' means a detailed written 
        statement that is required by section 102(2)(C).
            ``(7) Finding of no significant impact.--The term `finding 
        of no significant impact' means a determination by a Federal 
        agency that a proposed agency action does not require the 
        issuance of an environmental impact statement.
            ``(8) Involved federal agency.--The term `involved Federal 
        agency' means an agency that, with respect to a proposed agency 
        action--
                    ``(A) proposed such action; or
                    ``(B) is involved in such action because such 
                action is directly related, through functional 
                interdependence or geographic proximity, to an action 
                such agency has taken or has proposed to take.
            ``(9) Lead agency.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), the term `lead agency' means, with 
                respect to a proposed agency action--
                            ``(i) the agency that proposed such action; 
                        or
                            ``(ii) if there are 2 or more involved 
                        Federal agencies with respect to such action, 
                        the agency designated under section 107(a)(1).
                    ``(B) Specification for mineral exploration or mine 
                permits.--With respect to a proposed mineral 
                exploration or mine permit, the term `lead agency' has 
                the meaning given such term in section 40206(a) of the 
                Infrastructure Investment and Jobs Act.
            ``(10) Major federal action.--
                    ``(A) In general.--The term `major Federal action' 
                means an action that the agency carrying out such 
                action determines is subject to substantial Federal 
                control and responsibility.
                    ``(B) Exclusion.--The term `major Federal action' 
                does not include--
                            ``(i) a non-Federal action--
                                    ``(I) with no or minimal Federal 
                                funding;
                                    ``(II) with no or minimal Federal 
                                involvement where a Federal agency 
                                cannot control the outcome of the 
                                project; or
                                    ``(III) that does not include 
                                Federal land;
                            ``(ii) funding assistance solely in the 
                        form of general revenue sharing funds which do 
                        not provide Federal agency compliance or 
                        enforcement responsibility over the subsequent 
                        use of such funds;
                            ``(iii) loans, loan guarantees, or other 
                        forms of financial assistance where a Federal 
                        agency does not exercise sufficient control and 
                        responsibility over the effect of the action;
                            ``(iv) farm ownership and operating loan 
                        guarantees by the Farm Service Agency pursuant 
                        to sections 305 and 311 through 319 of the 
                        Consolidated Farmers Home Administration Act of 
                        1961 (7 U.S.C. 1925 and 1941 through 1949);
                            ``(v) business loan guarantees provided by 
                        the Small Business Administration pursuant to 
                        section 7(a) or (b) and of the Small Business 
                        Act (15 U.S.C. 636(a)), or title V of the Small 
                        Business Investment Act of 1958 (15 U.S.C. 695 
                        et seq.);
                            ``(vi) bringing judicial or administrative 
                        civil or criminal enforcement actions; or
                            ``(vii) extraterritorial activities or 
                        decisions, which means agency activities or 
                        decisions with effects located entirely outside 
                        of the jurisdiction of the United States.
                    ``(C) Additional exclusions.--An agency action may 
                not be determined to be a major Federal action on the 
                basis of--
                            ``(i) an interstate effect of the action or 
                        related project; or
                            ``(ii) the provision of Federal funds for 
                        the action or related project.
            ``(11) Mineral exploration or mine permit.--The term 
        `mineral exploration or mine permit' has the meaning given such 
        term in section 40206(a) of the Infrastructure Investment and 
        Jobs Act.
            ``(12) Proposal.--The term `proposal' means a proposed 
        action at a stage when an agency has a goal, is actively 
        preparing to make a decision on one or more alternative means 
        of accomplishing that goal, and can meaningfully evaluate its 
        effects.
            ``(13) Reasonably foreseeable.--The term `reasonably 
        foreseeable' means likely to occur--
                    ``(A) not later than 10 years after the lead agency 
                begins preparing the environmental document; and
                    ``(B) in an area directly affected by the proposed 
                agency action such that an individual of ordinary 
                prudence would take such occurrence into account in 
                reaching a decision.
            ``(14) Special expertise.--The term `special expertise' 
        means statutory responsibility, agency mission, or related 
        program experience.''.

SEC. 3. E-NEPA.

    (a) Permitting Portal Study.--The Council on Environmental Quality 
shall conduct a study and submit a report to Congress within 1 year of 
the enactment of this Act on the potential to create an online 
permitting portal for permits that require review under section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)) that would--
            (1) allow applicants to--
                    (A) submit required documents or materials for 
                their application in one unified portal;
                    (B) upload additional documents as required by the 
                applicable agency; and
                    (C) track the progress of individual applications;
            (2) enhance interagency coordination in consultation by--
                    (A) allowing for comments in one unified portal;
                    (B) centralizing data necessary for reviews; and
                    (C) streamlining communications between other 
                agencies and the applicant; and
            (3) boost transparency in agency decisionmaking.
    (b) Authorization of Appropriations.--There is authorized to be 
appropriated $500,000 for the Council on Environmental Quality to carry 
out the study directed by this section.
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