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H.R. 5468 (115th): Permitting Litigation Efficiency Act of 2018


The text of the bill below is as of Apr 11, 2018 (Introduced). The bill was not enacted into law.


I

115th CONGRESS

2d Session

H. R. 5468

IN THE HOUSE OF REPRESENTATIVES

April 11, 2018

(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.

Short title

This Act may be cited as the Permitting Litigation Efficiency Act of 2018.

2.

Limitations on judicial review of agency actions

Section 706 of title 5, United States Code, is amended—

(1)

by striking To the extent and inserting (a) To the extent; and

(2)

by adding at the end the following:

(b)

A court shall presume a delay in final action on an application for Federally-required permits to be an unreasonable delay for purposes of subsection (a) if final action on all permits applied for is not taken before—

(1)

the date for final action established in a schedule set by an official designated by the President, provided that such schedule is established not later than 60 days of the filing of the completed application and includes, in addition to such date for final action, a date prior to such date for the final determination of the scope of any statutorily required environmental review; or

(2)

in the absence of such a date for final action on the application, the date that is 2 years after the date the completed application was filed, other than in accordance with—

(A)

a timetable under section 41003(c)(2) of the Fixing America’s Surface Transportation Act;

(B)

section 139 of title 23, United States Code; or

(C)

section 2045 of the Water Resources Development Act of 2007.

(c)

Notwithstanding any other provision of law, judicial review of any permitting determination for a permit described in subsection (b) shall be barred unless the action is filed not later than 180 days after the date of the final record of decision or approval or denial of the permit, unless a different time is otherwise specified in law. In any action seeking judicial review of such a determination, such review shall be limited only to matters that were included in any record of the proceeding of the agency that pertain to the issuance of the permit, including the final determination of the scope of any environmental review.

.

3.

Issuance of restraining orders and injunctions

(a)

Preliminary injunctions or temporary restraining orders

Section 705 of title 5, United States Code, is amended—

(1)

by striking When an agency and inserting (a) When an agency; and

(2)

by adding at the end the following:

(b)

In any action seeking review of a determination to issue a permit, if a party moves for a temporary restraining order or preliminary injunction pertaining to the permit or the permitted activity, the court, in addition to any other applicable equitable considerations—

(1)

shall consider, in assessing the balance of the equities and the public interest, the potential beneficial and harmful effects resulting from such an order or injunction on public health, safety, the environment, and economic interests, including in areas that will be affected by the permitted activity and on the employment of United States workers;

(2)

may not presume that any harms identified pursuant to paragraph (1) are reparable;

(3)

may condition such an order or injunction upon the payment by the party seeking such order or injunction of a bond equal to an amount not to exceed $5,000,000 or a lesser, but material, percentage of the reasonably anticipated costs of delay of the project for which the permit or permits were applied; and

(4)

may not issue a temporary restraining order unless the party seeking the order shows that it was not reasonably possible to seek a preliminary injunction at an earlier date.

.

(b)

Permanent injunctions

Section 706 of title 5, United States Code, as amended by this Act, is further amended by adding at the end the following:

(d)

In any action seeking review of a determination to issue a permit, if a party moves for a restraining order or injunction pertaining to the permit or the permitted activity, the court, in addition to considering any other applicable equitable factors, shall issue such order only if it is determined to be in the public interest, and shall, in making such determination, consider—

(1)

the environmental benefits of the permitted activity; and

(2)

the costs, including detrimental effects on the environment, of any delay in undertaking the permitted activity.

(e)

The court may preclude recovery by a permit applicant on a bond required under section 705(b)(3) if the court determines the action was substantially justified.

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