BUILDER Act of 2023 or the Building United States Infrastructure through Limited Delays and Efficient Reviews Act of 2023
This bill places limits on the environmental review of proposed major federal actions under the National Environmental Policy Act of 1969 (NEPA) and establishes deadlines and other requirements to expedite the environmental review of such actions.
Specifically, the bill limits the scope of the environmental review of major federal actions significantly affecting the quality of the human environment as specified by the bill. The bill also specifies the thresholds that trigger when agencies must issue environmental assessments and environmental impact statements for proposed agency actions, outlines when agencies are not required to prepare environmental documents for such actions, and establishes deadlines to complete such documents.
The bill also establishes a process for designating a lead federal agency as well as a joint lead agency, such as a state government, to supervise the environmental review under NEPA. The lead agency must supervise the preparation of one environmental document (e.g., environmental impact statement), which satisfies the document requirement for all involved agencies, and prepare a schedule to complete the review of the action. If the lead agency is unable to meet the deadlines, it must pay $100 per day to the applicant until the applicant approves a new deadline. A lead agency may allow a project sponsor to prepare environmental documents under specified circumstances.
Additionally, the bill limits judicial review of NEPA cases, including by establishing deadlines to file lawsuits under NEPA.
[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.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Natural Resources.
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