BISMARCK – U.S. Senator Kevin Cramer (R-ND) helped introduce the Undoing NEPA’s Substantial Harm by Advancing Concepts that Kickstart the Liberation of the Economy” (UNSHACKLE) Act this week. This legislation to reform the National Environmental Policy Act (NEPA) regulatory process so federal agencies, state and local governments, are better empowered to carry out NEPA’s original purpose and not get bogged down in bureaucracy.

“The National Environmental Policy Act is a 50 year-old law designed to ensure infrastructure and energy projects consider environmental factors prior to development. Without congressional action, the bureaucracy has turned NEPA compliance into an overly complicated process where permitting often takes longer than building the project itself. Leave it to the bureaucracy to turn a law meant to help something move forward into rules that are only good for holding something up,” said Senator Cramer. “The UNSHACKLE Act will empower state and local governments while providing legal certainty and clear limitations to the federal bureaucracy.”

As Chairman of the Senate Environment and Public Works (EPW) Subcommittee on Fisheries, Water, and Wildlife, Senator Cramer has also worked with the Trump Administration to reform the NEPA process administratively. Senator Mike Lee (R-UT) is leading the legislation, with Senator Ted Cruz (R-TX) also joining as an original cosponsor.

“Environmental planning is essential to sustainable growth, but unfortunately NEPA has become a weapon used by special interests to make much-needed infrastructure and maintenance projects throughout our country prohibitively expensive,” said Senator Lee. “The UNSHACKLE Act will reform the NEPA process so that federal agencies, state, and local governments are better empowered to carry out NEPA’s original process while also making our nation’s infrastructure and maintenance project affordable again.”

“For years, NEPA’s burdensome requirements have left countless infrastructure projects in a state of judicial and bureaucratic limbo, stunting job creation and economic growth in communities across the country,” said Senator Cruz. “Providing meaningful reform to streamline the NEPA process will help hard-working men and women return to work on delayed projects and help our economy continue to flourish.”

The UNSHACKLE Act is comprehensive NEPA legislation with four major areas of reform. Specifically, the bill:

Shot Clocks

  • Requires agencies to complete the NEPA process for projects requiring an Environmental Impact Statement (EIS) within 2 years, and imposes a 1-year deadline for agencies to issue a Categorical Exclusion (CE) or complete the NEPA process for a project requiring an Environmental Assessment (EA). Requires the Office of Management and Budget to reduce the “head of an agency’s” budget by 0.5% for each deadline violation.
  • Requires a federal agency to approve or deny any permit or authorization for a project within 90 days of completion of the project’s NEPA process.

Process Reforms

  • Mandates only one EIS or one EA for each project.
  • Requires agencies to use relevant NEPA analysis and work from prior projects.
  • Prohibits agencies from considering alternatives that are not “economically or technically feasible” or outside the agency’s statutory authority.
  • Permits agencies to use categorical exclusions that have been approved for use by another agency or by an act of Congress.
  • Allows federal agencies to adopt state environmental documents prepared under state environmental law such as the EIS or EA for a proposed action.
  • Allows federal agencies to select qualified third parties to prepare NEPA documents on the agency’s behalf so long as the agency provides oversight of the preparation of the document and independent evaluation.

Legal Reforms

  • Clarifies requirements necessary to receive judicial review for NEPA related claims.
  • Sets a uniform 150-day statute of limitations for all NEPA related claims.
  • Requires federal courts to fully apply the bond requirements set by rule 65(c) for granting preliminary injunctions and temporary restraining orders.
  • Reforms the elements, evidentiary standards, and requirements for a court to consider when granting injunctive relief for a NEPA related claim.
  • Reforms the Equal Access to Justice Act by removing “environmental skills” as a “special factor” for courts to award attorney’s fees beyond the statutory lodestar rate.

Expanding the State Assignment Program

  • Expands the current NEPA assignment program so that all federal agencies are permitted to enter into MOU’s with applicable state entities to delegate the state the authority to carry out the NEPA process on the federal agency’s behalf.