[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3170 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                S. 3170

To prescribe judicial review requirements for certain projects, and for 
                            other purposes.


_______________________________________________________________________


                   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.

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

SECTION 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''.

SEC. 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.

SEC. 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.

SEC. 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:

``SEC. 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).''.

SEC. 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''.
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