REPAIR Act of 2023

Bill: 118-s-3170
Sponsor: full_name: Sen. Cassidy, Bill [R-LA]
Introduced: 2023-10-31
Policy area: Environmental Protection
Latest action: action_date: 2023-10-31
text: Read twice and referred to the Committee on Environment and Public Works.

Summaries:

tv_txt: II 118th CONGRESS 1st Session S. 3170 IN THE SENATE OF THE UNITED STATES October 31, 2023 Mr. Cassidy (for himself, Mr. Daines , Mr. Risch , Ms. Lummis , Mr. Crapo , and Mr. Marshall ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To prescribe judicial review requirements for certain projects, and for other purposes.

1. Short title This Act may be cited as the Revising and Enhancing Project Authorizations Impacted by Review Act of 2023 or the REPAIR Act of 2023 . 2. Definitions In this Act: (1) Agency The term agency has the meaning given the term in section 551 of title 5, United States Code. (2) Agency of jurisdiction The term agency of jurisdiction means any agency that is responsible for approving an authorization under authorizing legislation. (3) Authorization The term authorization means any license, permit, authorization, approval, variance, consultation, finding, or other administrative decision (or any extension to or of any license, permit, authorization, approval, variance, consultation, finding, or other administrative decision) that is required or authorized under Federal law (including regulations) to design, plan, site, construct, reconstruct, commence operations of, modify, or operate a project. (4) Authorizing legislation The term authorizing legislation means any of— (A) the Clean Air Act ( 42 U.S.C. 7401 et seq. ); (B) the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ); (C) the Natural Gas Act ( 15 U.S.C. 717 et seq. ); (D) the Federal Power Act ( 16 U.S.C. 791a et seq. ); (E) division A of subtitle III of title 54, United States Code (formerly known as the National Historic Preservation Act ( 16 U.S.C. 470 et seq. )); (F) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ); (G) the Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq. ); (H) the Act of June 8, 1940 ( 16 U.S.C. 668 et seq. ) (commonly known as the Bald and Golden Eagle Protection Act ); (I) the Marine Mammal Protection Act of 1972 ( 16 U.S.C. 1361 et seq. ); (J) the Coastal Zone Management Act of 1972 ( 16 U.S.C. 1451 et seq. ); (K) the Outer Continental Shelf Lands Act ( 43 U.S.C. 1331 et seq. ); (L) the Mineral Leasing Act ( 30 U.S.C. 181 et seq. ); (M) the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ), as it relates to any State seeking to obtain primary enforcement authority for— (i) that Act pursuant to section 1413 of that Act ( 42 U.S.C. 300g-2 ); or (ii) an underground injection control program pursuant to section 1422 of that Act ( 42 U.S.C. 300h-1 ); (N) the Deepwater Port Act of 1974 ( 33 U.S.C. 1501 et seq. ); (O) the Atomic Energy Act of 1954 ( 42 U.S.C. 2011 et seq. ); (P) the Geothermal Steam Act of 1970 ( 30 U.S.C. 1001 et seq. ); (Q) the National Forest Management Act of 1976 ( Public Law 94–588 ; 90 Stat. 2949); (R) the Forest and Rangeland Renewable Resources Planning Act of 1974 ( 16 U.S.C. 1600 et seq. ); (S) the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1701 et seq. ); (T) the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. ); (U) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ); (V) chapter 2005 of title 54, United States Code (formerly known as the Urban Park and Recreation Recovery Act of 1978 ( 16 U.S.C. 2501 et seq. )); and (W) any other Federal law requiring an environmental review pursuant to the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ). (5) Council The term Council means the Federal Permitting Improvement Steering Council established by section 41002(a) of the FAST Act ( 42 U.S.C. 4370m–1(a) ). (6) Direct and tangible harm The term direct and tangible harm means a harm with a causal connection to a project that causes— (A) physical illness or bodily injury; or (B) uncompensated economic loss. (7) Environmental review The term environmental review means an assessment of environmental impact, prepared pursuant to the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), leading to the preparation of— (A) an environmental assessment; (B) a finding of no significant impact; (C) an environmental impact statement; (D) a record of decision; or (E) any other review prepared to fulfill the requirements of that Act. (8) Project The term project means an activity required to receive an authorization under authorizing legislation. (9) Project sponsor The term project sponsor means the agency or other entity, including any private or public-private entity, that seeks approval from the agency of jurisdiction for a project. 3. Judicial review (a) Statute of limitations (1) Definitions In this subsection: (A) Initial authorization (i) In general 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. (ii) Exclusion 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). (B) Initial claim The term initial claim means a claim described in paragraph (2)(A). (2) Claiming relating to initial authorizations (A) Initial claims 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 30 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. (B) Subsequent action (i) In general 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 30 days after the date on which the initial claim was filed. (ii) Failure to submit subsequent claim 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— (I) invalidate the initial claim; (II) be barred from bringing that additional claim; and (III) remove any such right of action relating to that initial claim. (3) Other claims Any other claim relating to the issuance of an authorization by an agency of jurisdiction for a project shall be subject to subsection (d). (b) Default remedy (1) In general 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. (2) Limitation 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. (c) Right of action 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)). (d) Right of alteration (1) In general 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— (A) to address the reasons for the injunction, remand, or vacatur; and (B) to reauthorize the project for development. (2) Process (A) Remediation proposals 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— (i) to address any identified issues that can be fully resolved; or (ii) to attempt to mitigate the identified issues if the issues cannot be fully resolved. (B) Extension (i) In general 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). (ii) Approval required If the Council receives a request from a project sponsor for an extension under clause (i), the Council shall approve that request. (iii) Treatment of the agency of jurisdiction 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). (C) Agency compliance 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— (i) approve the remediation proposal submitted by the project sponsor; and (ii) direct the agency of jurisdiction to reauthorize all applicable authorizations for the project. (D) Council review (i) In general 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— (I) 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); (II) complete a final remediation plan; and (III) direct the agency of jurisdiction to reauthorize the project based on that final remediation plan. (ii) Final remediation plan (I) In general 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. (II) Form A final remediation plan described in clause (i) shall— (aa) accept the remediation proposal of the project sponsor; or (bb) alter the remediation proposal of the project sponsor based on the remediation proposal of the agency of jurisdiction. (III) Alterations 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. (IV) Length of final remediation plan The text of a final remediation plan shall not exceed 50 pages. (iii) Right of acceptance (I) In general 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. (II) Reauthorization If the Council receives an acceptance under subclause (I), the Council shall— (aa) consider the accepted remediation proposal to be the final remediation plan; and (bb) direct the agency of jurisdiction to reauthorize all authorizations for the project. (iv) Meetings 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. (v) Completion On completion of a final remediation plan under clause (ii), the Council shall— (I) make public the final remediation plan in a manner consistent with the authorization approval process of the agency of jurisdiction; and (II) direct the agency of jurisdiction to reauthorize all authorizations for the project. (vi) Compliance 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— (I) consider the remediation proposal of the project sponsor to be the final remediation plan; and (II) reauthorize all authorizations for the project in accordance with the final remediation plan. (E) Additional meetings 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. (F) Treatment of additional analyses (i) In general 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. (ii) Additional analyses If additional analysis is required to fulfill a court order, all final remediation plans described in subparagraph (D)(ii) shall— (I) designate a singular agency of jurisdiction to perform the analysis; (II) allow for not more than 90 days to perform the analysis; (III) 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 (IV) 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. (3) Right of additional review 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. (4) Reauthorization (A) In general 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. (B) Failure to reauthorize a project 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. (e) Venue A claim seeking judicial review of an authorization issued by an agency of jurisdiction for a project shall be filed— (1) in the court the jurisdiction of which contains the location of the project that the authorization applies to; or (2) 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. (f) Random assignment of cases 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. (g) Publication of judicial review time periods (1) In general 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— (A) is subject to judicial review; and (B) has not been adjudicated within 90 days after the date on which the claim was assigned to a judge. (2) Reporting requirements (A) In general 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— (i) the name of the claim; (ii) the authorizing legislation pursuant to which the initial authorization (as defined in subsection (a)(1)) was issued; (iii) the name of the plaintiff; (iv) the name of the defendant; (v) the date on which the claim was filed; (vi) the name of the court; and (vii) the name of the judge to which the claim was assigned. (B) Alternate reporting methods (i) In general A plaintiff or defendant involved in a claim may self-report the information described in clauses (i) through (vii) of subparagraph (A). (ii) Publication The Council shall ensure that the availability to self-report as described in clause (i) is publicized— (I) on the home page of the website of the Council; and (II) in any other manner determined to be appropriate by the Council. (iii) Notification to applicable court 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. (3) Maintenance of judicial review timelines 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. (4) Publication 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. (5) Council reporting (A) In general Not less frequently than once per calendar year, the Council shall publish and submit to the committees described in subparagraph (D) a report containing— (i) a list of all cases with claims that were reported to the Council under paragraph (2); (ii) a list of all courts with multiple cases with claims reported under paragraph (2), which shall be— (I) listed by name with the total number of applicable cases on file with each court— (aa) in the year preceding the date on which the applicable report is submitted; and (bb) in total since the date of enactment of this Act; and (II) 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; (iii) a list of all judges with multiple cases with claims reported under paragraph (2), which shall be— (I) listed by name with the total number of late cases assigned to each judge— (aa) in the year preceding the date on which the applicable report is submitted; and (bb) in total since the date of enactment of this Act; and (II) ordered according to the largest number, from largest to smallest, of late cases per judge since the date of enactment of this Act; (iv) the name of any judge that has failed to report a claim in accordance with paragraph (2)(A); and (v) any other information that the Council determines to be necessary to ensure timely review of claims relating to the issuance of an authorization. (B) More frequent reporting 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. (C) Publication Any report prepared by the Council under subparagraph (A) shall be— (i) published in the Federal Register; and (ii) made available on the website of the Council. (D) Committees described The committees referred to in subparagraph (A) are— (i) the Committee on Environment and Public Works of the Senate; (ii) the Committee on the Judiciary of the Senate; (iii) the Committee on Energy and Natural Resources of the Senate; (iv) the Committee on Natural Resources of the House of Representatives; (v) the Committee on the Judiciary of the House of Representatives; and (vi) the Committee on Energy and Commerce of the House of Representatives. (h) Treatment of existing authorization requests 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. (i) Treatment of existing judicial reviews 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. (j) Savings provision Nothing in this section— (1) 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 (2) prohibits any lawful action taken by a project sponsor that has been denied the ability— (A) to appeal an initial rejection of a project by the agency of jurisdiction; (B) 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 (C) to resubmit a project in a manner that addresses the reasons for the rejection of that project by the agency of jurisdiction. 4. Judicial standing under NEPA 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: 112. Judicial standing Nothing in this title, or any environmental review (as defined in section 2 of the REPAIR Act of 2023 ) carried out pursuant to this title, provides a judicial right of action under this title or subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act ), relating to the approval of an authorization (as defined in that section) for a project (as defined in that section) that uses an applicable environmental review (as so defined). . 5. Alterations for offshore alternative energy Section 23(c)(2) of the Outer Continental Shelf Lands Act ( 43 U.S.C. 1349(c)(2) ) is amended by striking or any development and production plan under this Act and inserting , any development and production plan under this Act, or any final plan or lease, easement, or right-of-way issued under section 8(p)(1)(C) and any related final Federal agency action .