I 

115TH CONGRESS 

2D SESSION H. R. 5468 

To amend chapter 7 of title 5, United States Code, to provide for certain 

limitations on judicial review of agency actions, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 11, 2018 

Mr. MARINO (for himself, Mr. CUELLAR, Mr. GOODLATTE, Mr. SMITH of 

Texas, Mr. COLLINS of Georgia, and Mr. AMODEI) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To amend chapter 7 of title 5, United States Code, to provide 

for certain limitations on judicial review of agency actions, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Permitting Litigation 

5 Efficiency Act of 2018’’. 

6 SEC. 2. LIMITATIONS ON JUDICIAL REVIEW OF AGENCY AC7 TIONS. 

8 Section 706 of title 5, United States Code, is amend9 ed— 


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1 (1) by striking ‘‘To the extent’’ and inserting 

2 ‘‘(a) To the extent’’; and 

3 (2) by adding at the end the following: 

4 ‘‘(b) A court shall presume a delay in final action on 

5 an application for Federally-required permits to be an un6 reasonable delay for purposes of subsection (a) if final ac7 tion on all permits applied for is not taken before— 

8 ‘‘(1) the date for final action established in a 

9 schedule set by an official designated by the Presi10 dent, provided that such schedule is established not 

11 later than 60 days of the filing of the completed ap12 plication and includes, in addition to such date for 

13 final action, a date prior to such date for the final 

14 determination of the scope of any statutorily re15 quired environmental review; or 

16 ‘‘(2) in the absence of such a date for final ac17 tion on the application, the date that is 2 years after 

18 the date the completed application was filed, other 

19 than in accordance with— 

20 ‘‘(A) a timetable under section 41003(c)(2) 

21 of the Fixing America’s Surface Transportation 

22 Act; 

23 ‘‘(B) section 139 of title 23, United States 

24 Code; or 


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1 ‘‘(C) section 2045 of the Water Resources 

2 Development Act of 2007. 

3 ‘‘(c) Notwithstanding any other provision of law, judi4 cial review of any permitting determination for a permit 

5 described in subsection (b) shall be barred unless the ac6 tion is filed not later than 180 days after the date of the 

7 final record of decision or approval or denial of the permit, 

8 unless a different time is otherwise specified in law. In 

9 any action seeking judicial review of such a determination, 

10 such review shall be limited only to matters that were in11 cluded in any record of the proceeding of the agency that 

12 pertain to the issuance of the permit, including the final 

13 determination of the scope of any environmental review.’’. 

14 SEC. 3. ISSUANCE OF RESTRAINING ORDERS AND INJUNC15 TIONS. 

16 (a) PRELIMINARY INJUNCTIONS OR TEMPORARY RE17 STRAINING ORDERS.—Section 705 of title 5, United 

18 States Code, is amended— 

19 (1) by striking ‘‘When an agency’’ and inserting 

20 ‘‘(a) When an agency’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(b) In any action seeking review of a determination 

23 to issue a permit, if a party moves for a temporary re24 straining order or preliminary injunction pertaining to the 


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1 permit or the permitted activity, the court, in addition to 

2 any other applicable equitable considerations— 

3 ‘‘(1) shall consider, in assessing the balance of 

4 the equities and the public interest, the potential 

5 beneficial and harmful effects resulting from such an 

6 order or injunction on public health, safety, the envi7 ronment, and economic interests, including in areas 

8 that will be affected by the permitted activity and on 

9 the employment of United States workers; 

10 ‘‘(2) may not presume that any harms identi11 fied pursuant to paragraph (1) are reparable; 

12 ‘‘(3) may condition such an order or injunction 

13 upon the payment by the party seeking such order 

14 or injunction of a bond equal to an amount not to 

15 exceed $5,000,000 or a lesser, but material, percent16 age of the reasonably anticipated costs of delay of 

17 the project for which the permit or permits were ap18 plied; and 

19 ‘‘(4) may not issue a temporary restraining 

20 order unless the party seeking the order shows that 

21 it was not reasonably possible to seek a preliminary 

22 injunction at an earlier date.’’. 

23 (b) PERMANENT INJUNCTIONS.—Section 706 of title 

24 5, United States Code, as amended by this Act, is further 

25 amended by adding at the end the following: 


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1 ‘‘(d) In any action seeking review of a determination 

2 to issue a permit, if a party moves for a restraining order 

3 or injunction pertaining to the permit or the permitted 

4 activity, the court, in addition to considering any other 

5 applicable equitable factors, shall issue such order only if 

6 it is determined to be in the public interest, and shall, 

7 in making such determination, consider— 

8 ‘‘(1) the environmental benefits of the per9 mitted activity; and 

10 ‘‘(2) the costs, including detrimental effects on 

11 the environment, of any delay in undertaking the 

12 permitted activity. 

13 ‘‘(e) The court may preclude recovery by a permit ap14 plicant on a bond required under section 705(b)(3) if the 

15 court determines the action was substantially justified.’’. 

Æ 


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