Sec. 3. Judicial review
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/bill/119/s/1355/is/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
In this subsection: The term initial authorization means an authorization issued by an agency of jurisdiction for a project following a request for the authorization from a project sponsor. The term initial authorization does not include any authorization issued by an agency of jurisdiction following an alteration made by a project sponsor pursuant to a mediation process described in subsection (d). The term initial claim means a claim described in paragraph (2)(A). Notwithstanding any other provision of law, a claim seeking judicial review of any portion of the initial authorization process carried out for a project pursuant to authorizing legislation or an initial authorization issued by an agency of jurisdiction for a project shall be filed by the date that is 120 days after the date on which the final agency action with respect to the project has been taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is sought.
Any additional action relating to an initial claim, including an action seeking a preliminary injunction based on the initial claim, shall be filed not later than 120 days after the date on which the initial claim was filed. An individual that fails to submit an additional action described in clause
(i)relating to the filed initial claim by the deadline described in that clause shall— invalidate the initial claim; be barred from bringing that additional claim; and remove any such right of action relating to that initial claim. Any other claim relating to the issuance of an authorization by an agency of jurisdiction for a project shall be subject to subsection (d). If a court of law determines that an agency did not comply with the requirements of authorizing legislation when granting an authorization for a project, the default remedy shall be to remand that authorization to the applicable agency. A court of law shall not vacate, enjoin, or otherwise limit an authorization granted for a project unless the issuance of the authorization would present an imminent and substantial danger to human health or the environment for which there is no other equitable remedy available under law. Notwithstanding any other provision of law, an individual seeking to bring a claim for judicial review of the approval of an authorization for a project may only bring the claim if the individual will suffer a direct and tangible harm because of the authorization for which the individual is seeking judicial review if the harm was not analyzed in the approval of the initial authorization (as defined in subsection (a)(1)). If an authorization for a project is enjoined, remanded, or vacated by a court of law, the project sponsor and the agency of jurisdiction shall participate in a mediation process overseen by the Council— to address the reasons for the injunction, remand, or vacatur; and to reauthorize the project for development. Subject to subparagraph (B)(i), not later than 60 days after the date on which an authorization for a project is enjoined, remanded, or vacated by a court of law, the project sponsor and the agency of jurisdiction shall each submit to the Council remediation proposals— to address any identified issues that can be fully resolved; or to attempt to mitigate the identified issues if the issues cannot be fully resolved. A project sponsor may request from the Council an extension of not more than 120 days to complete a remediation proposal described in subparagraph (A). If the Council receives a request from a project sponsor for an extension under clause (i), the Council shall approve that request. If an extension is requested and approved under clauses
(i)and (ii), respectively, an agency of jurisdiction may, notwithstanding subparagraph (A), submit the remediation proposal required under that subparagraph
(A)within the extension period described in clause (i). If an agency of jurisdiction fails to submit a remediation proposal in the time period described in subparagraph
(A)or (B)(i), as applicable, the Council shall— approve the remediation proposal submitted by the project sponsor; and direct the agency of jurisdiction to reauthorize all applicable authorizations for the project. Not later than 60 days after the date on which a project sponsor and an agency of jurisdiction submit a remediation proposal in accordance with subparagraph
(A)or (B)(i), as applicable, the Council shall— hold any necessary joint meetings between the project sponsor and the agency of jurisdiction to assist in reaching a final remediation plan described in clause (ii); complete a final remediation plan; and direct the agency of jurisdiction to reauthorize the project based on that final remediation plan. A final remediation plan described in clause
(i)shall contain any alterations to a project necessary to address the reasons for which a court of law enjoined, remanded, vacated, or otherwise limited an authorization for the applicable project. A final remediation plan described in clause
(i)shall— accept the remediation proposal of the project sponsor; or alter the remediation proposal of the project sponsor based on the remediation proposal of the agency of jurisdiction. To the maximum extent practicable, alterations described in subclause (II)(bb) shall represent an intermediate position between the remediation proposal of the project sponsor and the remediation proposal of the agency of jurisdiction. The text of a final remediation plan shall not exceed 50 pages. At any point in the 60-day period described in clause (i), a project sponsor or an agency of jurisdiction may submit to the Council in writing an acceptance of the remediation proposal of the other party. If the Council receives an acceptance under subclause (I), the Council shall— consider the accepted remediation proposal to be the final remediation plan; and direct the agency of jurisdiction to reauthorize all authorizations for the project. The Council shall hold not less than 1 meeting between a project sponsor and an agency of jurisdiction to address any necessary areas of dispute between the applicable remediation plans. On completion of a final remediation plan under clause (ii), the Council shall— make public the final remediation plan in a manner consistent with the authorization approval process of the agency of jurisdiction; and direct the agency of jurisdiction to reauthorize all authorizations for the project. If the Council fails to direct the agency of jurisdiction to reauthorize all authorizations for the project within the 60-day period described in clause (i), the agency of jurisdiction shall— consider the remediation proposal of the project sponsor to be the final remediation plan; and reauthorize all authorizations for the project in accordance with the final remediation plan. At the request of a project sponsor, following the date on which an authorization for a project is enjoined, remanded, or vacated by a court of law, but before the date on which a project sponsor and an agency of jurisdiction submit a remediation proposal under subparagraph
(A)or (B)(i), as applicable, the Council may hold meetings between the agency of jurisdiction and the project sponsor in an attempt to align the parties on remediation proposals. To the maximum extent practicable, and except as provided in clause (ii), all remediation proposals and final remediation plans described in subparagraph (D)(ii) shall only use existing information, data, and analyses used in the initial authorization (as defined in subsection (a)(1)) or presented as a part of the initial claim (as defined in that subsection) and subsequent judicial process. If additional analysis is required to fulfill a court order, all final remediation plans described in subparagraph (D)(ii) shall— designate a singular agency of jurisdiction to perform the analysis; allow for not more than 90 days to perform the analysis; designate the court order as fulfilled and the project authorization re-approved if the designated agency does not complete the analysis in the 90-day period described in subclause (II); and establish clear actions to be taken in relation to the final remediation plan and the authorization dependent on the potential outcomes of the additional analysis. A final remediation plan described in paragraph (2)(D)(ii) shall not be subject to judicial review or further right of action by an individual or entity other than the project sponsor. An agency of jurisdiction shall reauthorize all authorizations for a project not later than 15 days after the date on which a final remediation plan described in paragraph (2)(D)(ii) is completed. If an agency of jurisdiction fails to reauthorize a project and submit to the project sponsor any necessary authorization paperwork within the 15-day period described in subparagraph (A), the project sponsor may begin any necessary actions reliant on the authorization to complete the project. A claim seeking judicial review of an authorization issued by an agency of jurisdiction for a project shall be filed— in the court the jurisdiction of which contains the location of the project that the authorization applies to; or if the location of the project transverses the jurisdiction of multiple courts, in the court the jurisdiction of which contains the location in which the largest financial investment will be made with respect to the project. To the maximum extent practicable, district courts of the United States and courts of appeals of the United States shall randomly assign cases seeking judicial review of any authorization issued by an agency of jurisdiction for a project to judges appointed, designated, or assigned to sit as judges of the court in a manner to avoid the appearance of favoritism or bias. The Council shall maintain a public database (referred to in this subsection as the database ) of any claim relating to the issuance of an authorization by an agency of jurisdiction that— is subject to judicial review; and has not been adjudicated within 90 days after the date on which the claim was assigned to a judge. In the case of a claim described in paragraph
(1)that has not been adjudicated within 90 days after the date on which the claim is assigned to a judge, the Director of the Administrative Office of the United States Courts shall submit to the Council a report, which shall include— the name of the claim; the authorizing legislation pursuant to which the initial authorization (as defined in subsection (a)(1)) was issued; the name of the plaintiff; the name of the defendant; the date on which the claim was filed; the name of the court; and the name of the judge to which the claim was assigned. A plaintiff or defendant involved in a claim may self-report the information described in clauses
(i)through
(vii)of subparagraph (A). The Council shall ensure that the availability to self-report as described in clause
(i)is publicized— on the home page of the website of the Council; and in any other manner determined to be appropriate by the Council. For each matter self-reported to the Council under clause (i), the Council shall notify the applicable court to confirm that the information described in clauses
(i)through
(vii)of subparagraph
(A)received by the Council is accurate. With respect to each claim in the database, the Council shall update the database not less frequently than daily to reflect the number of days the claim has been under judicial review. Not later than 5 business days after the date on which the Council receives a report from the Director of the Administrative Office of the United States Courts under subparagraph
(A)of paragraph
(2)or from a plaintiff or defendant under subparagraph
(B)of that paragraph, as applicable, the Council shall update the database to include the information contained in the report. Not less frequently than once per calendar year, the Council shall publish and submit to the committees described in subparagraph
(D)a report containing— a list of all cases with claims that were reported to the Council under paragraph (2); a list of all courts with multiple cases with claims reported under paragraph (2), which shall be— listed by name with the total number of applicable cases on file with each court— in the year preceding the date on which the applicable report is submitted; and in total since the date of enactment of this Act; and ordered according to the largest number, from largest to smallest, of late cases per court in the year preceding the date on which the applicable report is submitted; a list of all judges with multiple cases with claims reported under paragraph (2), which shall be— listed by name with the total number of late cases assigned to each judge— in the year preceding the date on which the applicable report is submitted; and in total since the date of enactment of this Act; and ordered according to the largest number, from largest to smallest, of late cases per judge since the date of enactment of this Act; the name of any judge that has failed to report a claim in accordance with paragraph (2)(A); and any other information that the Council determines to be necessary to ensure timely review of claims relating to the issuance of an authorization. The Council may publish the report required under subparagraph
(A)more frequently than once per calendar year, subject to the condition that the Council shall not publish the report more frequently than once per quarter. Any report prepared by the Council under subparagraph
(A)shall be— published in the Federal Register; and made available on the website of the Council. The committees referred to in subparagraph
(A)are— the Committee on Environment and Public Works of the Senate; the Committee on the Judiciary of the Senate; the Committee on Energy and Natural Resources of the Senate; the Committee on Natural Resources of the House of Representatives; the Committee on the Judiciary of the House of Representatives; and the Committee on Energy and Commerce of the House of Representatives. For a project sponsor that has submitted a project to an agency of jurisdiction for approval of an authorization on or before the date of enactment of this Act, the judicial review requirements described in this section shall apply to any authorization granted for the project. For any authorization subject to judicial review as of the date of enactment of this Act, the judicial review processes described in this section shall apply to such judicial review. Nothing in this section— establishes a right of action under any authorizing legislation relating to an environmental review that does not already provide for a right of action relating to that environmental review; or prohibits any lawful action taken by a project sponsor that has been denied the ability— to appeal an initial rejection of a project by the agency of jurisdiction; to appeal a rejection by the agency of jurisdiction relating to 1 or more attempts to address the issues identified as a result of a previous injunction, remand, or vacatur of an authorization decision; or to resubmit a project in a manner that addresses the reasons for the rejection of that project by the agency of jurisdiction.