Sec. 164. Judicial review

754 words·~3 min read·/bill/113/hr/3895/ih/section-164

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

The United States Court of Appeals for the circuit in which a Priority Energy Project is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over the review of an order or action of a Federal agency or State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit, license, concurrence, or approval (hereinafter in this section collectively referred to as a permit ) required under Federal law. The United States Court of Appeals for the District of Columbia shall have original and exclusive jurisdiction over the review of an alleged failure to act by a Federal agency or State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit required under Federal law for a Priority Energy Project.

The Court shall act as expeditiously as possible for all appeals under this section. If a Court finds that such order or action is inconsistent with the Federal law governing such permit and would prevent the construction, expansion, or operation of the Priority Energy Project, the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of the Court. If the Court remands the order or action to a Federal or State agency, the Court shall set as expeditious a schedule and deadline as possible for the agency to act on remand, and in any event shall allow not more than 90 days for agency action on remand.

Attorney’s fees and other expenses of litigation shall be awarded to the prevailing party in actions challenging an agency action granting a permit for or otherwise authorizing a Priority Energy Project, but in no event shall a Priority Energy Project Developer be required to pay attorney’s fees and other expenses of litigation to a prevailing party. Appeals brought pursuant to this section may only be filed within 30 days of a final agency action regarding a permit. In any suit involving a Priority Energy Project brought under a citizen suit provision under a Federal law, any fact material to the standing of the party bringing the suit that is in dispute shall be adjudicated by the Court prior to the adjudication of any other issue relating to the merits of the suit.

A party seeking to file a citizen suit pursuant to a Federal law involving a Priority Energy Project shall first notify in writing the relevant agency and the Priority Energy Project Developer of its intent to file a citizen suit, the claims it intends to bring, and all relevant statutory and regulatory provisions. Not later than 60 days following receipt of such notice, the agency shall exercise discretion in determining whether enforcement of the claims described in such notice are an appropriate use of agency resources.

If the agency determines such claims are not an appropriate use of agency resources, the citizen suit shall be not be considered authorized under relevant Federal law and if filed shall be immediately dismissed by the Court. If the agency determines such claims are an appropriate use of agency resources, the agency shall have a period of 24 months to act in response to such claims, including by bringing an enforcement action or by consulting with the Priority Energy Project Developer, before the citizen suit shall be considered authorized under relevant Federal law.

Upon the request of the Priority Energy Project Developer, the agency must allow for an additional 24 months to act in response to such claims. After the 24-month period, or 48-month period, as applicable, described in subparagraph (B)(iii) has expired, if the agency publishes a notice in the Federal Register expressly stating that it declines to address the claims described by the party seeking to file a citizen suit as described pursuant to subparagraph (A), then such party is authorized to file a citizen suit under relevant Federal law.

The agency is prohibited from publishing such notice if the Priority Energy Project Developer has consulted with the agency and taken remedial action regarding the claims contained in the notice described in paragraph (A). In a citizen suit filed pursuant a Federal law that involves a Priority Energy Project, a Priority Energy Project Developer shall not be required to pay attorneys fees and expenses to a prevailing party. Notwithstanding any other provision of law, no Federal agency shall enter into a settlement agreement arising from a citizen suit subject to this subsection that would require the reallocation of agency resources that had been previously allocated by law or regulation.