Title II — Revocation of Energy-Restricting BLM Lockup

H.R. 3033 · 113th Congress · Aug 2, 2013 · Lineage

II Revocation of Energy-Restricting BLM Lockup

A Expedited Shale Leasing of Federal Lands

Sec. 201 Opening of lands to oil shale leasing

(a)

Repeal of Limitation on Use of Funds— Section 433 of division F of the Consolidated Appropriations Act, 2008 (Public Law 110–161; 121 Stat. 2152) is repealed.

(b)

Issuance of Regulations— The Secretary of the Interior shall issue all regulations necessary to implement section 369 of the Energy Policy Act of 2005 (42 U.S.C. 15927) with respect to oil shale by not later than 60 days after the date of the enactment of this Act. Such regulations shall include such safeguards and assurances as the Secretary considers necessary to allow States to exercise their regulatory and statutory authorities under State law, consistent with otherwise applicable Federal law.

(c)

Leasing of Oil Shale Resource— Immediately after issuing regulations under subsection (b), the Secretary of the Interior shall—

(1)

offer for leasing for research and development of oil shale resources under subsection (c) of section 369 of the Energy Policy Act of 2005 (42 U.S.C. 15927), additional 160-acre tracts of lands the Secretary considers necessary to fulfill the research and development objectives of such Act; and

(2)

offer for leasing for commercial exploration, development, and production of oil shale resources under subsection (e) of such section, public lands in States for which the Secretary finds sufficient support and interest as required by that subsection.

B Judicial Review Regarding Energy Projects

Sec. 211 Definitions

In this subtitle:

(1)

The term covered civil action means a civil action containing a claim under section 702 of title 5, United States Code, regarding agency action (as defined for the purposes of that section) affecting a covered energy project on Federal lands of the United States.

(2)

The term covered energy project means any action or decision by the President or a Federal official regarding the leasing of Federal lands (including submerged lands) for the exploration, development, production, processing, or transmission of oil, natural gas, or any other source or form of energy, including actions and decisions regarding the selection or offering of Federal lands for such leasing, or any action under such a lease, except that the term does not include any disputes between the parties to a lease regarding the obligations under such lease, including regarding any alleged breach of the lease.

Sec. 212 Jurisdiction over causes and claims relating to covered energy projects

Venue for any covered civil action shall lie in the district court where a project or lease tract exists or is proposed.

Sec. 213 Time for filing complaint

All causes and claims arising from a covered energy project must be filed not later than the end of the 90-day period beginning on the date of the action or decision by a Federal official that constitutes the covered energy project concerned. Any cause or claim not filed within that time period shall be barred.

Sec. 214 Expedition in hearing and determining the action

The court shall endeavor to hear and determine any covered civil action as expeditiously as possible.

Sec. 215 Standard of review

In any judicial review of a covered civil action, administrative findings and conclusions relating to the challenged Federal action or decision shall be presumed to be correct, and the presumption may be rebutted only by clear and convincing evidence contained in the administrative record.

Sec. 216 Limitation on injunction and prospective relief

In a covered civil action, the court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a legal requirement, and is the least intrusive means necessary to correct that violation. In addition, a court shall limit the duration of a preliminary injunction to halt a covered energy projects to no more than 60 days, unless the court finds clear reasons to extend the injunction. In such case of an extension, such extension shall only be in a 30-day increment and shall require action by the court to renew the injunction.

Sec. 217 Limitation on Attorneys’ fees

Sections 504 of title 5, United States Code, and 2412 of title 28, United States Code, (together commonly called the Equal Access to Justice Act) do not apply to a covered civil action, nor shall any party in such a covered civil action receive payment from the Federal Government for their attorneys’ fees, expenses, and other court costs.

Sec. 218 Legal standing

Challengers filing appeals with the Department of the Interior Board of Land Appeals shall meet the same standing requirements as challengers before a United States district court.

C Permitting reform

Sec. 221 Purposes

The purposes of this subtitle are to—

(1)

respond to the Nation’s increased need for domestic energy resources;

(2)

facilitate interagency coordination and cooperation in the processing of permits required to support oil and gas use authorization on Federal lands, both onshore and on the Outer Continental Shelf, in order to achieve greater consistency, certainty, and timeliness in permit processing requirements;

(3)

promote process streamlining and increased interagency efficiency, including elimination of interagency duplication of effort;

(4)

improve information sharing among agencies and understanding of respective agency roles and responsibilities;

(5)

promote coordination with State agencies with expertise and responsibilities related to Federal oil and gas permitting decisions;

(6)

promote responsible stewardship of Federal oil and gas resources;

(7)

maintain high standards of safety and environmental protection; and

(8)

enhance the benefits to Federal permitting already occurring as a result of a coordinated and timely interagency process for oil and gas permit review for certain Federal oil and gas leases.

Sec. 222 Federal Coordinator

(a)

Establishment— There is established, as an independent agency in the Executive Branch, the Office of the Federal Oil and Gas Permit Coordinator.

(b)

Federal Permit Coordinator— The Office shall be headed by a Federal Permit Coordinator, who shall be appointed by the President within 90 days after the date of enactment of this Act.

(c)

Duties— The Federal Permit Coordinator shall be responsible for the following:

(1)

Coordinating the timely completion of all permitting activities by Federal agencies, and State agencies to the maximum extent practicable, with respect to any oil and gas project under a Federal lease issued pursuant to the mineral leasing laws, either onshore or on the Outer Continental Shelf, including (for purposes of this subtitle only) any oil shale project under a Federal oil shale lease.

(2)

Ensuring the compliance of Federal agencies, and State agencies to the extent they participate, with this subtitle.

Sec. 223 Regional offices and Regional Permit Coordinators

(a)

Regional offices— Within 90 days after the date of appointment of the Federal Permit Coordinator, the Secretary of the Interior, in consultation with the Federal Permit Coordinator, shall establish regional offices to coordinate review of Federal permits for oil and gas projects on Federal lands onshore and on the Outer Continental Shelf.

(b)

Number and location of regional offices— The number of regional offices shall be established by the Secretary in consultation with the Federal Permit Coordinator. The Secretary shall ensure that there is an adequate number of offices in each region proximate to available Federal oil and gas lease tracts onshore and on the Outer Continental Shelf to meet the demands for expeditious permitting in that region. The Secretary shall designate as regional offices under this section all offices established under section 365 of the Energy Policy Act of 2005 (42 U.S.C. 15924).

(c)

Memorandum of understanding— Within 90 days after the appointment of the Federal Permit Coordinator, the Federal Permit Coordinator, the Secretary, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Homeland Security, the Administrator of the Environmental Protection Agency, the Secretary of Defense, and the head of any other Federal agency with responsibilities related to permitting of Federal oil and gas leases, shall enter into a memorandum of understanding establishing respective duties and responsibilities for staffing the regional offices and accomplishing the objectives of this section.

(d)

Designation of qualified staff—

(1)

In general— Not later than 30 days after the date of signing of the MOU, all Federal signatory agencies shall assign to each regional office the appropriate employees with expertise in the oil and gas permitting issues relating to that office, including, but not limited to, with respect to—

(A)

consultation and preparation of biological opinions under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536);

(B)

permits under section 404 of Federal Water Pollution Control Act (33 U.S.C. 1344);

(C)

regulatory matters under the Clean Air Act (42 U.S.C. 7401 et seq.);

(D)

planning under the National Forest Management Act of 1976 (16 U.S.C. 472a et seq.);

(E)

the preparation of analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(F)

applications for permits to drill under the Mineral Leasing Act (30 U.S.C. 181 et seq.); and

(G)

exploration plans and development and production plans under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).

(2)

Preference and incentives— To the maximum extent practicable, for purposes of this subsection, Federal agencies shall give preference to employees volunteering for reassignment to the regional offices, and shall offer incentives to attract and retain regional office employees, including, but not limited to, retaining contract employees, rotational assignments, salary incentives of up to 120 percent of an employee’s existing salary immediately prior to reassignment, or any combination of strategies.

(e)

Duties— Each employee assigned under subsection (d) shall—

(1)

within 90 days after the date of assignment, report to the regional office to which the employee is assigned;

(2)

be responsible for all issues relating to the jurisdiction of the home office or agency of the employee; and

(3)

participate as part of the team working on proposed oil and gas projects, planning, and environmental analyses.

(f)

Creation of and delegation of authority to regional permit coordinators— The Federal Permit Coordinator shall appoint a Regional Permit Coordinator to be located within each regional office established under this section, with full authority to act on behalf of the Federal Permit Coordinator.

(g)

Additional personnel— The Federal Permit Coordinator or Regional Permit Coordinators may at any time direct that any Federal agency party to the MOU under subsection (c) assign additional staff required to implement the duties of the regional offices.

Sec. 224 Reviews and actions of Federal agencies

(a)

Schedules for timely permit decisionmaking— Within 10 days after the date on which the Secretary receives any oil and gas permit application or amended application, the Secretary shall either notify the applicant that the application is complete or notify the applicant that information is missing and specify the information that is required to be submitted for the application to be complete. Within 30 days after notifying a permit applicant that an application is complete, the Secretary, in consultation with the permit applicant as necessary, shall determine and inform the Regional Permit Coordinator responsible for that project area whether the proposed permit is a class I, class II, or class III permit. The Regional Permit Coordinator shall as soon as possible but in no event later than 30 days following the Secretary’s determination establish a binding schedule to ensure the most expeditious possible review and processing of the requested permit, in accordance with this section.

(b)

Permit classes and schedules—

(1)

Class I permits— An oil and gas permit shall be designated as a class I permit under this section if the permitted activity is of a nature that would typically require preparation of an environmental impact statement under NEPA to inform the permitting decision. For such permits, the Regional Permit Coordinator shall establish a schedule for timely completion of all permit reviews and processing, not to exceed 30 months. The Regional Permit Coordinator shall make the schedule publicly available within 10 days after the schedule is established.

(2)

Class II permits— An oil and gas permit shall be designated as a class II permit under this section if the permitted activity is of a nature that would typically be found not to significantly affect the quality of the human environment under NEPA. For such permits, the Regional Permit Coordinator shall establish the most expeditious schedule possible for completion of all permit reviews and processing, not to exceed 90 days. The Regional Permit Coordinator may grant a one-time extension of that schedule, not to exceed 60 days, upon a good cause showing that additional time is necessary to complete permit decisions. Not later than 15 days after establishing or extending any schedule for a class II permit, the Regional Permit Coordinator shall provide the permit applicant with the schedule.

(3)

Class III permits— Notwithstanding paragraphs (1) and (2), an oil and gas permit shall be designated as a class III permit under this section if the permitted activity either qualifies for a statutory or regulatory categorical exclusion under NEPA or if the requirements under NEPA and other applicable law for the permit have been completed within 30 days after the date of a complete application. For such permits, the permit shall be issued within 30 days after the date of a complete application.

(4)

Reclassification of class II permit— If prior to the expiration of the established schedule for a class II permit newly discovered information indicates that the class II permit will significantly affect the quality of the human environment, the Secretary may, in consultation with the permit applicant, reclassify the permit as a class I permit under paragraph (1), and the Regional Coordinator shall establish an amended schedule that complies with the provisions of that paragraph.

(c)

Reporting— The Regional Permit Coordinators shall include data on all schedule timing and compliance in their reports to the Federal Permit Coordinator required under subsection (i), who shall include such data in the report to the President and Congress required under subsection (i).

(d)

Dispute resolution— The Regional Permit Coordinator shall resolve all administrative issues that affect oil and gas permit reviews. The Regional Permit Coordinator shall report jointly to the Federal Permit Coordinator and to the head of the relevant action agency, or his or her designee, for resolution of any issue regarding an oil and gas permit that may result in missing the schedule deadlines established pursuant to subsection (b). The Regional Permit Coordinators shall include data regarding the incidence and resolution of disputes under this subsection in their reports to the Federal Permit Coordinator required under subsection (i), who shall include such reported data and develop recommendations in the report to the President and Congress required under subsection (i).

(e)

Remedies— An applicant for a class I permit may bring a cause of action to seek expedited mandamus review, if a Regional Permit Coordinator or the Secretary fails to—

(1)

establish a schedule in accordance with subsection (b);

(2)

enforce and ensure completion of reviews within schedule deadlines; or

(3)

take all actions as are necessary and proper to avoid jeopardizing the timely completion of the entire schedule.

(f)

Prohibition of certain terms and conditions— No Federal agency may include in any permit, right-of-way, or other authorization issued for an oil and gas project subject to the provisions of this subtitle, any term or condition that may be authorized, but is not required, by the provisions of any applicable law, if the Federal Permit Coordinator determines that such term or condition would prevent or impair in any significant respect completion of a permit review within the time schedule established pursuant to subsection (b) or would otherwise impair in any significant respect expeditious oil and gas development.

(g)

Consolidated record— The Federal Permit Coordinator, acting through the appropriate Regional Permit Coordinator, with the cooperation of Federal and State administrative officials and agencies, shall maintain a complete, consolidated record of all decisions made or actions taken by the Federal Permit Coordinator or Regional Permit Coordinator or by any Federal agency with respect to any oil and gas permit.

(h)

Relationship to NEPA and Energy Policy Act of 2005—

(1)

Section 390(a) of the Energy Policy Act of 2005 (42 U.S.C. 15942(a)) is amended—

(A)

by striking “rebuttable presumption that the use of a”; and

(B)

by striking “would apply”.

(2)

Section 17(p) of the Mineral Leasing Act (30 U.S.C. 226(p)) is repealed.

(i)

Additional powers and responsibilities—

(1)

Regional Permit Coordinator reports— The Regional Permit Coordinators shall each submit a report to the Federal Permit Coordinator by December 31 of each year that documents each office’s performance in meeting the objectives under this subtitle, including recommendations to further streamline the permitting process.

(2)

Redirection of priorities or resources— In order to expedite overall permitting activity, the Federal Permit Coordinator may redirect the priority of regional office activities or the allocation of resources among such offices, and shall engage the agencies that are parties to the MOU to the extent such adjustments implicate their respective staffs or resources.

(3)

Report to congress— Beginning 3 years after the date of enactment of this Act, the Federal Permit Coordinator shall prepare and submit a report to the President and Congress by April 15 of each year that outlines the results achieved under this subtitle and makes recommendations to the President and Congress for further improvements in processing oil and gas permits on Federal lands.

Sec. 225 State coordination

The Governor of any State wherein an oil and gas operation may require a Federal permit, or the coastline of which is in immediate geographic proximity to oil and gas operations on the Outer Continental Shelf, may be a signatory to the MOU for purposes of fulfilling any State responsibilities with respect to Federal oil and gas permitting decisions. The Regional Permit Coordinators shall facilitate and coordinate concurrent State reviews of requested permits for oil and gas projects on the Outer Continental Shelf.

Sec. 226 Savings provision

Except as expressly stated, nothing in this subtitle affects—

(1)

the applicability of any Federal or State law; or

(2)

any delegation of authority made by the head of a Federal agency the employees of which are participating in the implementation of this section.

Sec. 227 Administrative and judicial review

(a)

Administrative review— Any oil and gas permitting decision for Federal lands onshore or on the Outer Continental Shelf that was issued in accordance with the procedures established by this subtitle shall not be subject to further administrative review within the respective Federal agency responsible for that decision, and shall be the final decision of that agency for purposes of judicial review.

(b)

Exclusive jurisdiction over permit decisions— Only the United States District Court for the District of Columbia shall have original jurisdiction over any civil action for the review of such a permit decision.

(c)

Limitations on claims— Notwithstanding any other provision of law, any action arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for an oil and gas permit subject to this subtitle shall be barred unless it is filed within 90 days after the date of the decision. Nothing in this subtitle creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of a permit, license, or approval.

(d)

Filing of record— When any civil action is brought pursuant to this subtitle, the Federal Permit Coordinator shall immediately prepare for the court a consolidated record.

(e)

Expedited review— The court shall endeavor to hear and determine any action for judicial review challenging a decision approved pursuant to this section as expeditiously as possible.

(f)

Expedited mandamus review— Notwithstanding subsection (e), within 30 days after the filing of an action challenging or seeking to enforce an established permit review schedule for a class I permit, the court shall issue a decision either compelling permit issuance or sanctioning the delay and establishing a new schedule that enables the most expeditious possible completion of proceedings. In rendering its decision, the court shall review whether the agencies subject to the schedule have been acting in good faith, whether the permit applicant has been cooperating fully with the agencies that are responsible for issuing the requested permits, and any other relevant matters. The court may issue orders to enforce any schedule it establishes under this subsection.

(g)

No private right of action— This subtitle shall not be construed to create any additional right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity, by a person against the United States, its agencies, its officers, or any person.

(h)

Finality of leasing decisions— Notwithstanding the provisions of any law or regulation to the contrary, a decision by the Department of the Interior to issue a Final Notice of Sale and proceed with an oil and gas lease sale pursuant to any mineral leasing law shall not be subject to further administrative review within the Department of the Interior, and shall be the final decision of the agency for purposes of judicial review.

Sec. 228 Amendments to publication process

Section 18 of the Outer Continental Shelf Lands Act (43 U.S.C. 1344) is amended—

(1)

by amending subsection (c)(2) to read as follows:

“(2) The Secretary shall publish a proposed leasing program in the Federal Register, and shall submit a copy of such proposed program to the Governor of each affected State, for review and comment. The Governor of a State may solicit comments from those executives of local governments of the State that the Governor, in the Governor’s discretion, determines will be affected by the proposed program.”

(2)

by striking subsection (c)(3); and

(3)

in subsection (d)(2) by inserting “final” after “proposed”.

Sec. 229 Definitions