US Codex
Bill
Notes

Title II — Judicial provisions

S. 1518 · 116th Congress · May 16, 2019 · Lineage

II Judicial provisions

Sec. 201 Deadline for filing energy-related causes of action

(a)
Definitions— In this section:
(1)
Agency action— The term agency action has the meaning given the term in section 551 of title 5, United States Code.
(2)
Energy-related cause of action— The term energy-related cause of action means a cause of action that—
(A)
is filed on or after the date of enactment of this Act; and
(B)
seeks judicial review of a final agency action to issue a permit, license, or other form of agency permission allowing—
(i)
an individual or entity to conduct on Indian land or public land activities involving the exploration, development, production, or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity; or
(ii)
an Indian tribe, or any organization of 2 or more entities at least 1 of which is an Indian tribe, to conduct activities involving the exploration, development, production, or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity, regardless of the location at which those activities are carried out.
(3)
Indian land—
(A)
In general— The term Indian land has the meaning given the term in section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501).
(B)
Inclusion— The term Indian land includes land owned by a Native Corporation under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(4)
Public land— The term public land has the meaning given the term public lands in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702).
(b)
Deadline for filing—
(1)
In general— An energy-related cause of action shall be filed by not later than 60 days after the date of publication of the applicable final agency action.
(2)
Prohibition— An energy-related cause of action that is not filed within the time period described in paragraph (1) shall be barred.
(c)
District court venue and deadline— An energy-related cause of action shall be—
(1)
brought in the United States District Court for the District of Columbia Circuit; and
(2)
resolved—
(A)
as expeditiously as practicable; and
(B)
in any event, not later than the date that is 180 days after the date on which the energy-related cause of action is filed.
(d)
Appellate review—
(1)
In general— An interlocutory order or final judgment, decree, or order of the district court in an energy-related cause of action may be reviewed by the United States Court of Appeals for the District of Columbia Circuit.
(2)
Requirement— The United States Court of Appeals for the District of Columbia shall resolve an appeal of an energy-related cause of action—
(A)
as expeditiously as practicable; and
(B)
in any event, not later than the date that is 180 days after the date on which the applicable interlocutory order or final judgment, decree, or order of the district court was issued.
(e)
Limitation on certain payments— Notwithstanding section 1304 of title 31, United States Code, no award may be made under section 504 of title 5, United States Code, or section 2412 of title 28, United States Code, and no amounts may be obligated or expended from the Claims and Judgment Fund of the Treasury to pay any fees or other expenses under those sections, to any person or party in an energy-related cause of action.
(f)
Legal fees—
(1)
Definition of ultimately prevail— In this subsection:
(A)
In general— The term ultimately prevail means a final, enforceable judgment by a court of competent jurisdiction in favor of a party on at least 1 energy-related cause of action that is an underlying rationale for the preliminary injunction, administrative stay, or other relief requested by the party.
(B)
Exclusion— The term ultimately prevail does not include any situation in which the relevant final agency action is modified or amended by the issuing agency, unless the modification or amendment is required pursuant to—
(i)
a final, enforceable judgment of the court; or
(ii)
a court-ordered consent decree.
(2)
Award—
(A)
In general— In any energy-related cause of action in which the plaintiff does not ultimately prevail, the court shall award to the defendant (including any intervenor-defendants), other than the United States, fees and other expenses incurred by that defendant in connection with the energy-related cause of action, unless the court finds that—
(i)
the position of the plaintiff was substantially justified, in accordance with subparagraph (B); or
(ii)
special circumstances make such an award unjust.
(B)
Substantially justified determination— Whether the position of the plaintiff was substantially justified for purposes of subparagraph (A)(i) shall be determined on the basis of the administrative record, as a whole, relating to the energy-related cause of action for which fees and other expenses are sought.

Sec. 202 Limiting sue and settle practices

(a)
Definitions— In this section:
(1)
Agency; agency action— The terms agency and agency action have the meanings given those terms under section 551 of title 5, United States Code.
(2)
Covered civil action— The term covered civil action means a civil action—
(A)
seeking to compel agency action;
(B)
alleging that the agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of—
(i)
private persons other than the person bringing the action; or
(ii)
a State, local, or tribal government; and
(C)
brought under—
(i)
chapter 7 of title 5, United States Code; or
(ii)
any other statute authorizing such an action.
(3)
Covered consent decree— The term covered consent decree means—
(A)
a consent decree entered into in a covered civil action; and
(B)
any other consent decree that requires agency action relating to a regulatory action that affects the rights of—
(i)
private persons other than the person bringing the action; or
(ii)
a State, local, or tribal government.
(4)
Covered consent decree or settlement agreement— The term covered consent decree or settlement agreement means a covered consent decree and a covered settlement agreement.
(5)
Covered settlement agreement— The term covered settlement agreement means—
(A)
a settlement agreement entered into in a covered civil action; and
(B)
any other settlement agreement that requires agency action relating to a regulatory action that affects the rights of—
(i)
private persons other than the person bringing the action; or
(ii)
a State, local, or tribal government.
(b)
Consent decree and settlement reform—
(1)
Pleadings and preliminary matters—
(A)
In general— In any covered civil action, the agency against which the covered civil action is brought shall publish the notice of intent to sue and the complaint in a readily accessible manner, including by making the notice of intent to sue and the complaint available in the Federal Register or online not later than 15 days after receiving service of the notice of intent to sue or complaint, respectively.
(B)
Entry of a covered consent decree or settlement agreement— A party may not make a motion for entry of a covered consent decree or to dismiss a civil action pursuant to a covered settlement agreement until after the end of proceedings in accordance with subparagraph (A) and paragraph (2)(B)(i).
(2)
Publication of and comment on covered consent decrees or settlement agreements—
(A)
In general— Not later than 60 days before the date on which a covered consent decree or settlement agreement is filed with a court, the agency seeking to enter the covered consent decree or settlement agreement shall publish in the Federal Register and online the proposed covered consent decree or settlement agreement.
(B)
Public comment—
(i)
In general— An agency seeking to enter a covered consent decree or settlement agreement shall accept public comment during the period described in subparagraph (A) on any issue relating to the matters alleged in the complaint in the applicable civil action or addressed or affected by the proposed covered consent decree or settlement agreement.
(ii)
Submissions to court— When moving that the court enter a proposed covered consent decree or settlement agreement or for dismissal pursuant to a proposed covered consent decree or settlement agreement, an agency shall inform the court of the statutory basis for the proposed covered consent decree or settlement agreement and its terms.
(3)
Review by court—
(A)
In general— A court shall review the statutory basis for the proposed covered consent decree or settlement agreement and its terms de novo.
(B)
Review of deadlines—
(i)
Proposed covered consent decrees— For a proposed covered consent decree, a court shall not approve the covered consent decree unless the proposed covered consent decree allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.
(ii)
Proposed covered settlement agreements— For a proposed covered settlement agreement, a court shall ensure that the covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.