H.R. 4776 — what changed

removed “(a) The purposes”

“(b) This Act is a purely procedural statute intended to ensure Federal agencies consider the environmental impacts of their actions during the decisionmaking process. This Act does not mandate particular results, and only prescribes a process. Nothing in this Act shall be construed to mandate any specific environmental outcome or result, nor shall this Act be interpreted to confer substantive rights or impose substantive duties beyond procedural requirements.”

changed “(5) the agency determines the proposed agency action is an action for which such agency’s compliance with another statute’s requirements serve a similar function as serves the requirements function of agency compliance with this Act with respect to such action; or

changed “(6) the proposed agency action—action relates to a project or action that has already been reviewed pursuant to a State environmental review statute or a Tribal environmental review statute, ordinance, resolution, regulation, or formally adopted policy and the lead agency determines such review serves the function of agency compliance with this Act.”

removed “(A) relates to a project or action that has already been reviewed pursuant to a State or Tribal environmental review statute; and

removed “(B) the lead agency determines such review meets the requirements of this Act.”

“(B) is not required to—

“(i) undertake new scientific or technical research unless the new scientific or technical research is essential to a reasoned choice among alternatives, and the overall costs and time frame of obtaining it are not unreasonable; or

changed “(ii) undertake new scientific and or technical research after the receipt of an application, as applicable, with respect to such a proposed agency action.”

changed “(c) Scope of review—In developing preparing an environmental document for a proposed agency action, a Federal agency—

changed “(1) may only consider only those effects that share a reasonably close causal relationship to, and are proximately caused by, the immediate project or action under consideration; and

“(2) may not consider effects that are speculative, attenuated from the project or action, separate in time or place from the project or action, or in relation to separate existing or potential future projects or actions.

changed “(d) Certainty—A Federal agency may not rescind, withdraw, amend, alter, or otherwise render ineffective any environmental document completed under this Act unless the Federal agency has been so ordered by a court.”Certainty

added “(1) Environmental documents—A Federal agency may not rescind, withdraw, amend, alter, or otherwise render ineffective any environmental document completed under this Act for a project or action where there is an applicant unless the Federal agency has been so ordered by a court or the applicant has agreed in writing to such rescission, withdrawal, amendment, or alteration.

added “(2) Authorizations

added “(A) In general—Except as provided in this subsection or existing law, a Federal agency may not revoke, rescind, withdraw, terminate, suspend, amend, alter, or take any other action to interfere with an authorization unless—

added “(i) the Federal agency is required to take such action by order of a court of competent jurisdiction;

added “(ii) the holder of the authorization has materially breached the terms of the authorization, or otherwise violated applicable law;

added “(iii) the authorization was obtained through fraud, intentional concealment, or material misrepresentation;

added “(iv) such action is necessary to prevent specific, immediate, substantial, and proximate harm or damage to life, property, national security, or defense that was not considered in the underlying environmental review process or final agency action for the authorization; or

added “(v) the Federal agency has received a request from the holder of the authorization or project sponsor to take such action.

added “(B) Requirement—The actions described in subparagraph (A) shall be, as appropriate and where feasible, supported by clear and convincing evidence and reasonably limited in duration and scope by the agency to address the specific issue such action is intended to address.

added “(C) Notice—Before an agency takes an action described in subparagraph (A), the agency shall notify the holder of the authorization and the project sponsor in writing of such action, including by providing a detailed explanation of the action, identifying the statutory authority relied upon for the action, and providing the evidence supporting the action.

added “(D) Judicial review

added “(i) In general—An action described in subparagraph (A) shall be subject to judicial review under chapter 7 of title 5, United States Code.

added “(ii) Venue—A person seeking judicial review of an action described in subparagraph (A) may only obtain review of such action in the United States court of appeals for any circuit wherein the project for which the authorization was issued is located.

added “(iii) Petitions by Federal agencies—No Federal agency may petition a court for vacatur or voluntary remand of an authorization unless the holder of the authorization or the project sponsor consents in writing to such a petition.

added “(E) Savings clause—Nothing in subparagraph (A) shall be construed to provide any Federal agency new, enhanced, or expanded authority, or to limit any existing authority, concerning any authorization.

added “(e) Presumption of negative impacts of taking no action relating to tribal trust resources—For any proposed agency action carried out on, or directly affecting, tribal trust resources (including lands and minerals) that is initiated by the federally recognized Indian Tribe for which the United States holds the affected resources in trust, and for which an environmental document was prepared that included consideration of a no action alternative, there shall be a presumption that the effects of taking no action will be negative for the federally recognized Indian Tribe.

added “(f) Effect of threshold determinations on other agencies—If a lead agency determines an environmental document is not required to be prepared with respect to a proposed agency action under subsection (a), another agency may not prepare an environmental document with respect to such proposed agency action.”

“(1) Document—To the extent practicable,”

“(2) Consideration timing

added “(A) In general—In preparing an environmental document for a proposed agency action, no Federal agency shall be required to consider any scientific or technical research that becomes publicly available after the earlier of, as applicable—

removed “(A) In general—In developing an environmental document for a proposed agency action, no Federal agency shall be required to consider any scientific or technical research that becomes publicly available after the sooner of, as applicable—

“(i) the date of receipt of an application with respect to such proposed agency action; and

“(ii) the date of publication of a notice of intent or decision to prepare such environmental document for such proposed agency action.

“(B) Applicability to other law—This paragraph does not affect any review of information required under subchapter II of chapter 5 of title 5, United States Code, with respect to comments received during the public comment period as applicable.

added “(C) Delay—A Federal agency may not delay the issuance of an environmental document or a final agency action, including any decision or determination, on the basis of awaiting new scientific or technical research or information that was not available as of the earlier of the dates described in subparagraph (A).”

removed “(C) Unnecessary delay—A Federal agency may not delay the issuance of an environmental document or a final agency action, including any decision or determination, on the basis of awaiting new scientific or technical research or information that was not available as of the deadlines specified in subparagraph (A).”

added “(1) Applications for authorizations

added “(A) Notification of complete or incomplete application—Unless a shorter deadline is specified by law, in connection with a proposed agency action for which an applicant submitted an application for an authorization to an agency, not later than 60 days after the date on which the applicant submits the application to the agency, the agency shall document the receipt of the application and—

added “(i) notify the applicant that the application is complete; or

added “(ii) notify the applicant that the application is incomplete and request in writing any additional information that the agency needs to determine that the application is complete and begin preparation of an environmental document.

added “(B) Agency determination

added “(i) Complete determination—If an agency determines an application is complete under subparagraph (A)(i), the agency shall, not later than 60 days after the date on which the agency makes such determination—

added “(I) notify the applicant that the agency has determined that the proposed agency action is excluded pursuant to one of the agency’s categorical exclusions, is not a major Federal action, or that no further agency action is required;

added “(II) issue a notice of intent to prepare an environmental impact statement for such proposed agency action; or

added “(III) notify the applicant that the agency has determined that preparation of an environmental assessment is necessary.

added “(ii) Incomplete determination—If the agency requests additional information under subparagraph (A)(ii), the deadline described in clause (i) shall be based on the date on which the agency receives the additional information instead of the date on which the determination is made.

added “(2) Cooperating agencies

added “(A) In general—Not later than 21 days after a lead agency issues a notice of intent under paragraph (1)(B)(i)(II) or notifies an applicant under paragraph (1)(B)(i)(III) with respect to a proposed agency action, the lead agency shall—

added “(i) identify all agencies that are likely to have environmental review, authorization, or other responsibilities with respect to the proposed agency action; and

added “(ii) invite each such agency to become a cooperating agency.

added “(B) Deadline to accept invitation—Not later than 21 days after an agency receives an invitation to become a cooperating agency under subparagraph (A)(ii), such agency shall accept or deny the invitation.

added “(C) Convening of cooperating agencies—Not later than 7 days after the deadline described in subparagraph (B) has passed for each agency that received an invitation to become a cooperating agency under subparagraph (A)(ii), the lead agency that sent each such invitation shall convene each agency that accepts such an invitation to coordinate on developing the schedule under subsection (a)(2)(D) for the applicable proposed agency action.

added “(D) Unidentified agencies—In the event that an agency that has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed agency action is not identified under subparagraph (A)(i), the lead agency with respect to the proposed agency action shall—

added “(i) invite such unidentified agency to become a cooperating agency by not later than 7 days after becoming aware that the agency has jurisdiction by law or special expertise; and

added “(ii) if such agency accepts the invitation, incorporate such agency into the schedule developed under subsection (a)(2)(D) and update such schedule accordingly by not later than 14 days after the date on which such agency accepts the invitation.”

added “(4) Deadline for final agency action—For any proposed agency action for which an applicant submitted an application for an authorization to an agency, not later than 30 days after completing an environmental impact statement or an environmental assessment for the proposed agency action, the lead agency, and any cooperating agency, shall issue a final agency action. The agency issuing such final agency action shall include in the final agency action a performance schedule for the completion of any other outstanding authorizations.”

added “(C) Exception—A project sponsor that approved an extension of a deadline under paragraph (5) may not obtain judicial review of a failure to act in accordance with such deadline under subparagraph (A) unless the lead agency fails to meet the new deadline or is delaying for reasons other than those necessary to complete its review.”

added “(7) Concurrent review—In carrying out an environmental review, the lead agency and each cooperating agency shall carry out the obligations of that agency under other applicable laws concurrently, and in conjunction, with other required reviews for the proposed agency action, pursuant to the requirements of applicable law, including, if applicable, under this Act.”

removed “(C) Exception—A project sponsor that approved an extension of a deadline under paragraph (2) may not obtain review of a failure to act in accordance with such deadline under subparagraph (A) unless the lead agency fails to meet the new deadline or is delaying for reasons other than those necessary to complete its review.”

added “(a) Programmatic environmental documents—When an agency prepares”

added “(b) Reliance on previously completed environmental reviews

added “(1) Actions that are substantially the same—A lead agency may satisfy the requirements of this Act with respect to a major Federal action by relying on an environmental assessment, environmental impact statement, or a categorical exclusion determination that the lead agency, another Federal agency, or a project sponsor under the supervision of a Federal agency completed for another major Federal action if the lead agency determines that—

added “(A) the new major Federal action is substantially the same as the other major Federal action or, if applicable, an alternative analyzed in such environmental assessment or environmental impact statement; and

added “(B) if applicable, the effects of the new major Federal action are substantially the same as the effects analyzed in such environmental assessment or environmental impact statement.

added “(2) Actions that are not substantially the same—If a new major Federal action is not substantially the same as another major Federal action or an alternative analyzed in an environmental assessment or environmental impact statement completed by the lead agency, another Federal agency, or a project sponsor under the supervision of a Federal agency, the lead agency may modify or augment any such previously completed environmental assessment or environmental impact statement as necessary to satisfy the requirements of this Act with respect to the new major Federal action. The lead agency shall make such modified environmental assessment or environmental impact statement publicly available as a new environmental assessment or environmental impact statement.”

added “(1) Authorization—The term authorization means any lease, right-of-way, easement, license, permit, approval, finding, determination, or other administrative decision issued by an agency or any interagency consultation that is required or authorized under Federal law in order to construct, modify, or operate a project.”

“(iv) farm ownership loans and operating loan guarantees by the Farm Service Agency pursuant to sections 305 and 311 through 319 of the Consolidated Farm and Rural Development Act;

added “(v) the issuance of an authorization by an agency where the effects of the action or project being permitted or authorized were previously evaluated by another agency in compliance with this Act;”

removed “(v) the issuance of a permit or other authorization by an agency where the proposal under consideration is otherwise being evaluated or was previously evaluated by the lead agency in compliance with this Act;”

“(C) Additional exclusions—An agency action may not be determined to be a major Federal action solely on the basis of the provision of Federal funds, including a grant, loan, loan guarantee, and funding assistance.”

added “(15) Reasonably foreseeable—The term reasonably foreseeable, with respect to environmental effects of a proposed agency action—

removed “(14) Reasonably foreseeable—The term reasonably foreseeable, with respect to environmental effects of a proposed agency action—

“(A) means effects that share a reasonably close causal relationship to, and are proximately caused by, the immediate project or action under consideration; and

“(B) does not include effects that are—

“(i) speculative;

“(ii) attenuated from the proposed agency action;

“(iii) separate in time or place from the proposed agency action; or

“(iv) in relation to separate existing or potential future projects.”

changed Title I of the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) is amended by adding at the end the following:amended—

added “110B. Judicial review

added “(a) Role of the court—In reviewing a claim of whether a final agency action complies with the requirements of this Act, a court—

added “(1) shall afford substantial deference to the agency; and

added “(2) may not substitute its judgment for that of the agency regarding the environmental effects included in the final agency action or included in the environmental document.

added “(b) Remand

added “(1) In general—If a court holds, under section 706(2)(A) of title 5, United States Code, that a final agency action does not comply with the requirements of this Act, the only remedy the court may order, notwithstanding chapter 7 of title 5, United States Code, is to remand, without vacatur or injunction, the final agency action to the agency with—

added “(A) specific instruction to correct the errors or deficiencies found by the court; and

added “(B) a reasonable schedule and deadline to correct such errors or deficiencies, which such deadline may not exceed—

added “(i) with regard to an order entered on or after the date of enactment of this section, the date that is 180 days after the date on which the order was entered; and

added “(ii) with regard to an order entered before the date of enactment of this section, the date that is 180 days after the date of enactment of this section.

added “(2) Continued effect of final agency action—A final agency action remanded under paragraph (1) shall remain in effect while the Federal agency corrects any errors or deficiencies found by the court.

added “(c) Limitations on claims

added “(1) In general—Notwithstanding any other provision of law (except as provided in subparagraph (A) with respect to a shorter deadline), a claim described in subsection (a) shall be barred unless—

added “(A) such claim is filed not later than 150 days after the final agency action is made public, unless a shorter deadline is specified under law;

added “(B) in the case of a final agency action for which there was a public comment period on an environmental document, such claim—

added “(i) is filed by a party that submitted a substantive and unique comment during such public comment period by the noticed comment deadline for the environmental document and such comment was sufficiently detailed to put the applicable Federal agency on notice of the issue upon which the party seeks review; and

added “(ii) concerns the same subject matter raised in the comment submitted during the public comment period;

added “(C) such claim is filed by a party that has suffered or imminently will suffer direct harm from the final agency action; and

added “(D) such claim does not challenge the establishment of a categorical exclusion.

added “(2) Supplemental environmental documents—If an agency issues a supplemental environmental document in response to a court order remanding a final agency action, the deadline described in paragraph (1)(A) shall be the date on which the agency makes public the agency action for which the supplemental environmental document is prepared. A claim for review of such final agency action shall be limited to information contained in the final supplemental environmental document that was not contained in a previous environmental document for the final agency action.

added “(3) Actions for use of tribal trust resources—For any final agency action that authorizes or affects the use of lands, minerals, or other resources already held in trust at the time of the final agency action by the United States for the benefit of a federally recognized Indian Tribe—

added “(A) except as provided in subparagraph (B), there shall be no administrative or judicial review of such final agency action based on a claim of failure to comply with the requirements of this Act; and

added “(B) subparagraph (A) shall not apply to actions for administrative or judicial review—

added “(i) brought by the federally recognized Indian Tribe for which the United States holds the lands, minerals, or other resources in trust; or

added “(ii) that involve reasonably foreseeable effects of the final agency action that occur outside the lands, minerals, or other resources held in trust by the United States for the benefit of a federally recognized Indian Tribe.

added “(d) Deadline for resolution

added “(1) In general—A court shall issue a final judgment on a claim described in subsection (a)—

added “(A) as expeditiously as practicable; and

added “(B) unless a shorter deadline is specified under Federal law, not later than the date that is 180 days after the date on which the agency record for the review is filed with the reviewing court, which shall not be more than 60 days after the filing of the claim.

added “(2) Accelerated deadlines—Nothing in this subsection may be construed to prevent a court from further expediting review of a claim described in subsection (a).

added “(3) Appeals

added “(A) Filing—A notice of appeal of a final judgment described in this subsection shall be filed not later than 60 days after such final judgment is issued. In the case of a final agency action remanded under subsection (b), the agency and, if applicable, the applicant, shall have the right to appeal during the pendency of the remand.

added “(B) Deadline for review—A court shall issue a final decision on an appeal filed under subparagraph (A)—

added “(i) as expeditiously as practicable; and

added “(ii) not later than the date that is 180 days after the date on which the appeal is filed.

added “(e) No effect on review of compliance with other deadlines—This section shall not affect the right to obtain review under section 107(g)(3).”

removed “113. Judicial review

removed “(a) Standard of review—Notwithstanding chapter 7 of title 5, United States Code, in reviewing a claim of whether a final agency action complies with the procedural requirements of this Act, a court may only hold that the final agency action does not comply with the procedural requirements of this Act if the court determines—

removed “(1) the agency abused its substantial discretion in complying with the procedural requirements of this Act; and

removed “(2) the agency would have reached a different result with respect to the final agency action absent such abuse of substantial discretion.

removed “(b) Role of the court—A court reviewing a claim described in subsection (a) may not substitute its judgment for that of the agency regarding the environmental effects of a proposed agency action.

removed “(c) Remand

removed “(1) In general—If a court holds that a final agency action does not comply with the procedural requirements of this Act, the court may only remand the final agency action to the agency with—

removed “(A) specific instruction to correct the errors or deficiencies in compliance; and

removed “(B) a reasonable schedule and deadline, which such deadline may not exceed—

removed “(i) with regard to an order entered on or after the date of enactment of this section, the date that is 180 days after the date on which the order was entered; and

removed “(ii) with regard to an order entered before the date of enactment of this section, the date that is 180 days after the date of enactment of this section.

removed “(2) Continued effect of final agency action—A final agency action remanded under paragraph (1) shall remain in effect while the Federal agency corrects any errors or deficiencies specified by the court.

removed “(d) Limitations on claims

removed “(1) In general—Notwithstanding chapter 7 of title 5, United States Code, a claim described in subsection (a) shall be barred unless—

removed “(A) such claim is filed not later than 150 days after the final agency action is made public, unless a shorter timeline is specified under Federal law;

removed “(B) in the case of a final agency action for which there was a public comment period on an environmental document, such claim—

removed “(i) is filed by a party that submitted a substantive and unique comment during such public comment period by the noticed comment deadline for the environmental document and such comment was sufficiently detailed to put the applicable Federal agency on notice of the issue upon which the party seeks review and shows that the party would suffer direct harm if its comments were not addressed; and

removed “(ii) concerns the same subject matter raised in the comment submitted during the public comment period; and

removed “(C) such claim does not challenge the establishment of a categorical exclusion.

removed “(2) Supplemental environmental documents—If an agency issues a supplemental environmental document in response to a court order remanding a final agency action, the deadline described in paragraph (1)(A) shall be the date on which the agency makes public the agency action for which the supplemental environmental document is prepared. A claim for review of such final agency action shall be limited to information contained in the final supplemental environmental document that was not contained in a previous environmental document for the final agency action.

removed “(e) Deadline for resolution

removed “(1) In general—A court shall issue a final judgment on a claim described in subsection (a)—

removed “(A) as expeditiously as practicable; and

removed “(B) unless a shorter timeline is specified under Federal law, not later than the date that is 180 days after the date on which the agency record for the review is filed with the reviewing court, which shall not be more than 30 days from the filing of the claim.

removed “(2) Accelerated deadlines—Nothing in this subsection may be construed to prevent a court form further expediting review of a claim described in subsection (a).

removed “(3) Appeals

removed “(A) Filing—A notice of appeal of a final judgment described in this subsection shall be filed not later than 60 days after such final judgment is issued.

removed “(B) Deadline for review—A court shall issue a final decision on an appeal filed under subparagraph (A)—

removed “(i) as expeditiously as practicable; and

removed “(ii) not later than the date that is 180 days after the date on which the appeal is filed.

removed “(f) Final agency actions

removed “(1) In general—The completion of an environmental assessment, an environmental impact statement, or a finding of no significant impact, or a determination to categorically exclude an action, shall not be considered a final agency action under chapter 7 of title 5, United States Code.

removed “(2) Agency action defined—In this section, the term agency action has the meaning given such term in section 551 of title 5, United States Code.

removed “(g) No effect on review of compliance with other deadlines—This section shall not affect the right to obtain review under section 107(g)(3).”