(1)

energy projects face catastrophic financial losses when Federal agencies revoke permits, fail to adhere to deadlines, or take years to process routine applications for those projects, even in cases in which project sponsors have invested millions of dollars in reliance on Federal approvals;

(2)

the regulatory uncertainty described in paragraph (1)—

(3)

regulatory uncertainty and permitting delays increase the cost of building energy and mineral infrastructure, which raises the cost of living for American families and increases power prices for homes and businesses.

(a) In general

The Energy Act of 2020 (division Z of the Consolidated Appropriations Act, 2021 (Public Law 116–260; 134 Stat. 2418)) is amended by adding at the end the following:

XII FIGHTING FOR RELIABLE ENERGY AND ENDING DOUBT FOR OPEN MARKETS

A Definitions

12001. Definitions

In this title:

(1) Agency

The term agency has the meaning given the term in section 551 of title 5, United States Code.

(2) Authorization

The term authorization means—

(A)

any license, permit, approval, finding, determination, or administrative decision issued by an agency; and

(B)

any interagency consultation that is authorized or required to be conducted under Federal law—

(i)

between or among—

(I)

agencies; and

(II)

in the case of any State that chooses to participate in the environmental review of a covered energy project, 1 or more State agencies; and

(ii)

in order to site, construct, reconstruct, or commence operation of a covered energy project.

(3) Complex authorization

The term complex authorization means an authorization identified as a complex authorization by a lead agency under section 12301(d).

(4) Covered energy project

The term covered energy project means any activity carried out in the United States that involves the construction of infrastructure—

(A)

to develop, produce, generate, store, transport, or distribute energy;

(B)

to capture, remove, transport, or store carbon dioxide; or

(C)

to mine, extract, beneficiate, or process minerals.

(5) Environmental document

(A) In general

The term environmental document means—

(i)

an environmental assessment;

(ii)

a finding of no significant impact;

(iii)

a notice of intent;

(iv)

an environmental impact statement; and

(v)

a record of decision.

(B) Inclusions

The term environmental document includes any document that is—

(i)

a supplement to a document described in subparagraph (A); or

(ii)

(I)

related to a document described in subparagraph (A); and

(II)

prepared pursuant to a court order.

(6) Environmental impact statement

The term environmental impact statement means a detailed, written statement required under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

(7) Environmental review

The term environmental review means any agency procedure or process for—

(A)

applying a categorical exclusion (within the meaning of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (including regulations promulgated pursuant to that Act)); or

(B)

preparing an environmental document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(8) Lead agency

The term lead agency, with respect to a covered energy project, means the agency with principal responsibility for environmental review of the covered energy project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (including regulations promulgated pursuant to that Act).

(9) Project sponsor

The term project sponsor means a private, public, or public-private entity seeking an authorization for a covered energy project.

(10) Reviewing court

The term reviewing court means the court in which a petition described in paragraph (1) of section 12403(a) is filed, subject to paragraph (2)(B) of that section.

(11) Routine authorization

The term routine authorization means any authorization that is not a complex authorization.

B Federal Land Energy and Mineral Reforms

12101. Accelerating federal land rights-of-way for certain covered energy projects

(a) Definition of eligible project

In this section, the term eligible project means a covered energy project for which the project sponsor seeks a right-of-way under section 501 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761).

(b) Cost recovery

Not later than 30 days after the date on which a project sponsor submits a complete application for a right-of-way under section 501 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761) for an eligible project, the Secretary of the Interior or the Secretary of Agriculture, as applicable, shall issue a cost recovery agreement relating to the eligible project, if a cost recovery agreement is required under section 2804.14 of title 43, Code of Federal Regulations (or a successor regulation), or section 251.58 of title 36, Code of Federal Regulations (or a successor regulation).

(c) Low-Disturbance activities for eligible projects

(1) In general

Not later than 180 days after the date of enactment of this title, to facilitate timely permitting of eligible projects, the Secretary of the Interior and the Secretary of Agriculture each shall develop or adopt 1 or more categorical exclusions, including allowing for extraordinary circumstances under which the categorical exclusion shall not be available, under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for low-disturbance activities described in paragraph (2) that are necessary for eligible projects.

(2) Activities described

Low-disturbance activities referred to in paragraph (1) include the following:

(A)

An individual surface disturbance of less than 5 acres for which a site-specific analysis has previously been completed in an environmental document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B)

An activity at a location at which the same type of activity has previously occurred during the 5-year period preceding the date of commencement of the activity.

(C)

An activity on previously disturbed or developed (as defined in section 1021.102(g)(1) of title 10, Code of Federal Regulations (as in effect on the date of enactment of this title) land that was analyzed, in an approved land use plan or an environmental document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)), as a reasonably foreseeable activity, subject to the condition that the land use plan or environmental document was approved during the 5-year period preceding the date of commencement of the activity.

(D)

Maintenance of a minor activity, other than construction or major renovation, of a building or facility.

(E)

A preliminary geotechnical investigation.

(F)

The construction or removal of a meteorological evaluation tower.

C De-Risking Compensation Program

12201. Definitions

In this subtitle:

(1) Capital contribution

The term capital contribution, with respect to a covered energy project, means the sum of—

(A)

any amounts expended by the project sponsor for the covered energy project; and

(B)

any amounts the project sponsor is obligated to expend for the covered energy project under an executed contract, binding commitment, or financing agreement, including verifiable expenditures for development, construction, permitting, and financing costs directly related to the covered energy project.

The term capital contribution shall not include executive compensation, bonuses, equity awards, general corporate overhead, lobbying, public relations, dividends, or profit.

(2) Court

The term Court means the United States Court of Federal Claims.

(3) Program

The term Program means the De-Risking Compensation Program established by section 12202(a).

(4) Secretary

The term Secretary means the Secretary of Energy.

12202. Establishment; purposes

(a) Establishment

There is established in the Department of Energy a program, to be known as the De-Risking Compensation Program, to provide compensation to project sponsors of covered energy projects that suffer unrecoverable losses due to an event described in section 12204(a), as determined by the Court in accordance with this subtitle.

(b) Purposes

The purposes of the Program are—

(1)

to reduce regulatory risks for energy infrastructure developers;

(2)

to facilitate timely permitting and financing of projects essential to United States energy security and economic competitiveness; and

(3)

to provide compensation in cases in which an agency action, inaction, or delay causes a covered energy project to be cancelled, unviable, or subject to an unrecoverable loss.

12203. Enrollment

(a) Eligibility

A project sponsor shall be eligible to enroll in the Program with respect to a covered energy project if the project sponsor—

(1)

exercises control over the covered energy project; and

(2)

submits to the Secretary an application under subsection (b)—

(A)

after the submission of a notice of initiation for the covered energy project under section 12301(a); but

(B)

not later than 90 days after the completed notice date (as defined in section 12302(a)) of the covered energy project.

(b) Applications

(1) In general

A project sponsor seeking enrollment in the Program shall submit to the Secretary an application, in such form, in such manner, and containing such information as the Secretary may require, subject to the condition that the required information shall be only that necessary—

(A)

to verify the eligibility of the project sponsor under subsection (a); and

(B)

to calculate the premium to be charged to the project sponsor under subsection (d)(1).

(2) Limitation

The Secretary shall not accept an application under this subsection relating to a covered energy project that is submitted after the occurrence of an event described in section 12204(a) with respect to the covered energy project.

(c) Determination by secretary

Not later than 90 days after the date of receipt of an application under subsection (b), the Secretary shall—

(1)

determine whether the application meets the requirements of that subsection; and

(2)

on making—

(A)

a positive determination under paragraph (1), enroll the project sponsor in the Program; or

(B)

a negative determination under paragraph (1), deny enrollment in the Program.

(d) Premiums and fees

(1) Annual premium

(A) In general

As a condition of enrollment in the Program, a project sponsor shall pay to the Secretary an annual premium in accordance with subparagraph (B).

(B) Amount

(i) In general

Subject to clause (ii), the amount of the annual premium paid by a project sponsor under subparagraph (A) shall be equal to 1.5 percent of the capital contribution of the project sponsor to the covered energy project.

(ii) Adjustment

The Secretary may increase the amount of a premium charged to a project sponsor under clause (i) by not more than 1.5 percentage points, as the Secretary determines to be necessary to ensure the solvency of the Program.

(C) Deposit

The Secretary shall deposit the premiums collected pursuant to this paragraph in the De-Risking Compensation Fund established by section 12205(a).

(2) No enrollment fee

No enrollment fee may be charged for enrollment in the Program.

(e) Administrative record

(1) In general

For each covered energy project with respect to which a project sponsor is enrolled in the Program, the Secretary shall maintain an administrative record, which shall consist of—

(A)

the application submitted by the project sponsor under subsection (b); and

(B)

the premium payment history of the project sponsor.

(2) Certification

Not later than 30 days after the date of receipt of a request from a project sponsor enrolled in the Program, the Secretary shall certify and submit to the Court the administrative record maintained under paragraph (1) with respect to the applicable covered energy project.

12204. Compensation of enrolled project sponsors

(a) Triggering events

A project sponsor enrolled in the Program may receive from the Secretary compensation in accordance with this section if the Court determines that the covered energy project of the project sponsor has suffered an unrecoverable loss due to any of the following events:

(1)

Revocation, cancellation, or vacatur of an authorization.

(2)

Failure by an agency to issue a final decision regarding an authorization by the applicable deadline under subsection (b) or (c) of section 12302.

(3)

Failure by an agency to act on a remand, renewal, or reapproval relating to the covered energy project by the date that is 180 days after the date on which the agency received the remand, renewal request, or reapproval request, as applicable.

(4)

Failure by an agency to adhere to a deadline required under another Federal law.

(5)

Inaction or unreasonable delay by an agency that—

(A)

causes the cancellation of the covered energy project; or

(B)

renders the covered energy project commercially unviable.

(b) Claims for compensation

(1) In general

Not later than the date described in paragraph (2), a project sponsor enrolled in the Program may bring an action in the Court seeking compensation from the Secretary with respect to a covered energy project.

(2) Description of date

The date referred to in paragraph (1) is the date that is 180 days after the later of—

(A)

the date on which an event described in subsection (a) occurs with respect to the applicable covered energy project; and

(B)

the first date on which the project sponsor knew, or reasonably should have known, of—

(i)

an unrecoverable loss suffered by the covered energy project; and

(ii)

the causal connection of that loss to an event described in subsection (a).

(3) Contents

A claim filed with the Court under this subsection shall include documentation, certified by a qualified accountant, demonstrating—

(A)

enrollment of the project sponsor in the Program with respect to the applicable covered energy project;

(B)

the total capital contribution of the project sponsor to the covered energy project; and

(C)

(i)

each unrecoverable loss claimed with respect to the covered energy project; and

(ii)

the causal connection of that loss to an event described in subsection (a).

(c) Judicial review

(1) Exclusive jurisdiction

The Court shall have exclusive jurisdiction over any action brought under this section.

(2) Standard and scope of review

In an action under this section, the Court shall—

(A)

review the matter based on the administrative record submitted by the Secretary under section 12203(e)(2), subject to paragraph (3); and

(B)

determine de novo—

(i)

whether the project sponsor has established, by a preponderance of the evidence, entitlement to compensation under the Program; and

(ii)

if such an entitlement is so established, the amount of compensation to be provided, in accordance with subsection (d).

(3) Failure to certify or submit record

If the Secretary fails to maintain an administrative record as required under paragraph (1) of section 12203(e), or fails to certify or submit to the Court such a record by the applicable deadline under paragraph (2) of that section, the Court may proceed in the applicable action under this section on the basis of—

(A)

the evidence submitted by the project sponsor; and

(B)

any other evidence the Court determines to be appropriate.

(d) Payments

(1) Judgment

(A) In general

On determining that a project sponsor is entitled to receive compensation in an action under this section, the Court shall enter a judgment ordering the Secretary to pay the awarded amount from the De-Risking Compensation Fund established by section 12205(a), subject to subparagraph (B).

(B) Minimum capital contribution

The Court may not award compensation to a project sponsor under this subsection with respect to a covered energy project unless the project sponsor demonstrates, through the documentation submitted under subsection (b)(3), that the capital contribution of the project sponsor to the covered energy project is equal to not less than $5,000,000.

(2) Amount

(A) Limitation

The amount of compensation provided to a project sponsor under this subsection shall not exceed an amount equal to the total capital contribution of the project sponsor to the applicable covered energy project.

(B) Offset

The Court shall reduce the amount of compensation provided to a project sponsor under this subsection by the amount of any award, settlement payment, insurance recovery, or other compensation received by the project sponsor for the same unrecoverable loss arising from the same agency action, inaction, delay, or order that is the subject of the action under this section.

(C) No double recovery

A project sponsor may not receive compensation under this subtitle for any loss for which the project sponsor has been compensated under subtitle E.

(3) Action by secretary

The Secretary shall provide to a project sponsor a payment awarded by the Court under this section by not later than 30 days after the date on which the judgment under paragraph (1) ordering that payment becomes final.

(e) Limitations on denial

The Court and the Secretary may not deny a claim submitted by a project sponsor under this subtitle based on—

(1)

the merits of the covered energy project that is the subject of the claim; or

(2)

a type of technology employed by that covered energy project.

(f) Appeals

A judgment of the Court under this section shall be subject to judicial review in the United States Court of Appeals for the Federal Circuit in accordance with section 1295 of title 28, United States Code.

12205. De-risking compensation fund

(a) Establishment

There is established in the Treasury of the United States a fund, to be known as the De-Risking Compensation Fund (referred to in this section as the Fund), consisting of—

(1)

the premiums collected under section 12203(d)(1); and

(2)

such amounts as are appropriated to the Fund pursuant to subsection (c).

(b) Use of funds

Amounts in the Fund shall be available, without further appropriation, solely for—

(1)

compensation payments ordered in final judgments under section 12204(d)(1); and

(2)

the administration of the Program, subject to the condition that not more than 5 percent of amounts in the Fund shall be available for administrative expenses.

(c) Authorization of appropriations

There are authorized to be appropriated to the Fund such sums as are necessary to carry out this subtitle.

(d) Limitation

No payment may be made under this subtitle from the general fund of the Treasury or any other Federal account if amounts in the Fund are exhausted.

D Permitting Timelines and Performance Fund

12301. Notices of initiation; project schedules

(a) Notices of initiation for covered energy projects

(1) In general

A project sponsor shall submit a notice of initiation for a covered energy project proposed to be carried out by the project sponsor to the head of each agency from which 1 or more authorizations are anticipated to be required to carry out the covered energy project.

(2) Contents

A notice of initiation under this subsection shall include—

(A)

a statement describing the purposes and objectives of the proposed covered energy project;

(B)

a concise description of the proposed covered energy project, including the general location of the proposed covered energy project and a summary of geospatial information, if available, illustrating the project area and the locations of known environmental, cultural, and historic resources, if any;

(C)

a statement identifying all Federal financing, environmental reviews, and authorizations anticipated to be required to carry out the proposed covered energy project; and

(D)

a general description, to the extent practicable, of any preliminary and projected future stakeholder engagement conducted by the project sponsor relating to the covered energy project.

(b) Determination of completeness

(1) In general

Not later than 30 days after the date of receipt of a notice of initiation under subsection (a), the applicable lead agency shall determine whether the notice is complete in accordance with paragraph (2).

(2) Completeness

A notice of initiation shall be considered to be complete under paragraph (1) if the lead agency determines that the notice meets the requirements described in subsection (a)(2).

(3) Statement

(A) In general

A lead agency, on making a determination under paragraph (1) that—

(i)

a notice of initiation is complete, shall provide to the project sponsor a statement of the determination; or

(ii)

a notice of initiation is incomplete, shall provide to the project sponsor a deficiency statement identifying the information required for the notice to be considered complete.

(B) Failure to act

If a lead agency fails to issue a statement under this paragraph by the applicable deadline described in paragraph (1), the applicable notice of initiation shall be deemed to be complete.

(4) Effect of deficiency

(A) Response by project sponsor

If a lead agency issues a deficiency statement under paragraph (3)(A)(ii), the project sponsor may—

(i)

submit to the lead agency a revised notice containing the information identified in the deficiency statement by not later than 90 days after the date on which the deficiency statement is issued; or

(ii)

request an extension of time to prepare such a revised notice.

(B) Extension

On receipt of a request for an extension under subparagraph (A)(ii), a lead agency shall grant the applicable project sponsor an extension of the applicable deadline under subparagraph (A)(i) for a period of not more than 90 days.

(c) Project schedule

Not later than 30 days after the date on which a notice of initiation for a proposed covered energy project is determined or deemed to be complete under subsection (b), the applicable lead agency shall publish a schedule for the covered energy project that—

(1)

(A)

lists each authorization required for the covered energy project; and

(B)

identifies each such authorization as a routine authorization or a complex authorization, in accordance with subsection (d);

(2)

identifies each Federal, State, Tribal, and local agency that has been designated as a cooperating agency for the covered energy project in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), if applicable; and

(3)

establishes for the covered energy project—

(A)

interim milestones; and

(B)

final decision dates in accordance with section 12302.

(d) Identification of authorizations

(1) In general

For each authorization required for a covered energy project for which a schedule is published under subsection (c), the lead agency shall identify the authorization as—

(A)

a complex authorization if the authorization is—

(i)

described in paragraph (2); or

(ii)

designated by the lead agency pursuant to paragraph (3)(A); or

(B)

a routine authorization if the authorization is not identified as a complex authorization under subparagraph (A).

(2) Description of complex authorizations

A complex authorization referred to in paragraph (1)(A)(i) is an authorization that—

(A)

requires the issuance of an authorization or certification of public convenience and necessity under section 3(e) or 7(c) of the Natural Gas Act (15 U.S.C. 717b(e), 717f(c));

(B)

requires the issuance of a license or permit under section 4(e) or 216 of the Federal Power Act (16 U.S.C. 797(e), 824p);

(C)

requires the issuance of a lease, easement, right-of-way, or other authorization under section 5 or 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1334, 1337(p));

(D)

requires the preparation of an environmental assessment or environmental impact statement;

(E)

requires formal consultation under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) or results in the issuance of a biological opinion;

(F)

requires consultation under section 306108 of title 54, United States Code;

(G)

grants a new or expanded right-of-way, easement, lease, or comparable real property interest exceeding 20 acres of Federal property; or

(H)

requires an individual permit under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) or an individual water quality certification under section 401 of that Act (33 U.S.C. 1341).

(3) Designations by lead agency

(A) In general

A lead agency may designate an authorization as a complex authorization based on a written, reasoned determination of the lead agency that identifies factors that—

(i)

are specific to the applicable covered energy project; and

(ii)

are not described in subparagraphs (A) through (H) of paragraph (2).

(B) Judicial review

The designation by a lead agency of a complex authorization pursuant to subparagraph (A) shall be subject to judicial review by the applicable reviewing court under subtitle E.

12302. Authorization deadlines

(a) Definition of completed notice date

In this section, the term completed notice date, with respect to a covered energy project, means the date on which the notice of initiation under section 12301(a) for the covered energy project is—

(1)

determined to be complete under section 12301(b)(1); or

(2)

deemed to be complete under section 12301(b)(3)(B).

(b) Deadlines

Each agency that receives from a project sponsor a notice of initiation under section 12301(a) for a covered energy project shall issue a final decision regarding each authorization for the covered energy project that is under the jurisdiction of the agency by not later than—

(1)

the date that is 90 days after the completed notice date of the covered energy project, if the authorization is a routine authorization; and

(2)

the date that is 1 year after the completed notice date of the covered energy project, if the authorization is a complex authorization, except as provided in subsection (c).

(c) Extension for environmental impact statements

If the lead agency publishes a notice of intent to prepare an environmental impact statement for a covered energy project after the completed notice date of the covered energy project, the deadline for completion of the environmental impact statement shall be the date that is 2 years after the completed notice date.

(d) Earlier deadlines under other federal law

If another Federal law requires an agency to issue a final decision regarding an authorization by a date that is earlier than the deadline applicable under subsection (b) or (c), the agency shall issue the final decision not later than that earlier date.

(e) Failure To meet deadline

(1) In general

Except as provided in paragraph (2), the failure by an agency to adhere to a deadline under this section or a milestone under section 12301(c)(3)(A) shall be—

(A)

considered to be a final agency action unlawfully withheld or unreasonably delayed under section 706 of title 5, United States Code; and

(B)

subject to review by a reviewing court under subtitle E or the United States Court of Federal Claims under subtitle C.

(2) Exceptions

The failure by an agency to adhere to a deadline under this section or a milestone under section 12301(c)(3)(A) shall not be considered to be a final agency action unlawfully withheld or unreasonably delayed under section 706 of title 5, United States Code, if—

(A)

the project sponsor and the agency agree to a different deadline or milestone; or

(B)

a reviewing court determines that—

(i)

a natural disaster reasonably impaired the ability of the agency to adhere to the deadline or milestone; or

(ii)

a national emergency or extraordinary circumstance exists for which the only available remedy is to delay the deadline or milestone.

12303. Reviewing court-approved contractors

(a) Definition of eligible project

In this section, the term eligible project means a covered energy project with respect to which a reviewing court has—

(1)

found that an agency has failed to adhere to a deadline or milestone; and

(2)

issued an order described in section 12404(b)(2)(C).

(b) Project sponsor request

(1) In general

On receipt of a request from the project sponsor of an eligible project, a reviewing court may authorize the project sponsor to retain a qualified contractor to complete any necessary analysis or documentation, in accordance with this subsection.

(2) Inclusions

A project sponsor request under paragraph (1) shall include—

(A)

identifying information for the contractor proposed to be hired by the project sponsor; and

(B)

the qualifications of that contractor, including—

(i)

relevant professional credentials;

(ii)

prior experience with Federal environmental reviews; and

(iii)

disclosure of any potential conflicts of interest that are material to the work to be performed, including—

(I)

any financial interest in the outcome of the applicable eligible project;

(II)

any contingent or success-based compensation arrangement;

(III)

any engagement with the project sponsor;

(IV)

any equity ownership with a 10-percent or greater interest;

(V)

any contractual relationship, during the 2-year period preceding the date of the request, between the contractor and an engineering, procurement, or construction firm acting as a prime contractor for the eligible project; and

(VI)

any current engagement related to the eligible project.

(3) Approval

(A) In general

Not later than 30 days after the date of receipt of a request of a project sponsor under this subsection, the reviewing court shall approve or reject the proposed contractor that is the subject of the request based on—

(i)

the demonstrated technical competence of the contractor for the required analyses;

(ii)

the absence of disqualifying conflicts of interest;

(iii)

the agreement of the contractor—

(I)

to operate under the technical guidance of the applicable agency;

(II)

to maintain independence in professional judgment; and

(III)

to proceed under the direction of the reviewing court if the agency fails to provide technical guidance or timely review by an applicable deadline under subsection (g); and

(iv)

a determination by the reviewing court regarding whether the contractor meets the qualifications described in subparagraph (B).

(B) Qualifications

The qualifications referred to in subparagraph (A)(iv), with respect to a contractor, are that the contractor—

(i)

holds a recognized professional license or certification applicable to the work, or has demonstrably comparable expertise;

(ii)

has demonstrated experience completing similar analyses for agencies during the preceding 5-year period;

(iii)

is not debarred or suspended from Federal contracting; and

(iv)

maintains professional liability insurance of not less than $1,000,000.

(C) Form of approval

The approval of a reviewing court under this paragraph may include any conditions or limitations necessary to ensure compliance with applicable law.

(c) Standards and obligations

(1) In general

A contractor approved by a reviewing court under subsection (b) shall—

(A)

follow applicable laws and regulations, guidance documents, and technical standards relevant to the analyses performed by the contractor;

(B)

certify under penalty of perjury that all work product of the contractor meets the applicable legal requirements;

(C)

maintain professional independence from the applicable project sponsor in all technical determinations and analyses;

(D)

remain subject to applicable professional liability and ethical standards; and

(E)

execute a sworn conflict of interest and relationship disclosure, as described in subsection (b)(2)(B)(iii), and maintain a log of material communications with the project sponsor, which shall be made available to the reviewing court and any applicable agency on request.

(2) Status of work product

All work product of a contractor approved under this section shall be—

(A)

deemed to be received by the applicable agency on submission by the contractor; and

(B)

included in the administrative record relating to each relevant authorization.

(d) Payment

(1) In general

All reasonable costs of a contractor approved by a reviewing court under this section, including the costs of studies, modeling, and coordination, shall be paid—

(A)

by the relevant lead agency from amounts in the Permitting Performance Fund established by section 12304(a); and

(B)

at rates not higher than comparable rates on the Federal Supply Schedule of the General Services Administration, or as otherwise determined to be reasonable by the reviewing court.

(2) Advances

(A) In general

A project sponsor may advance to a contractor approved under this section payment for any costs described in paragraph (1).

(B) Reimbursement

The relevant lead agency shall reimburse a project sponsor that makes an advance payment under subparagraph (A) by not later than 30 days after the date on which the project sponsor submits to the lead agency an invoice relating to the advance payment.

(e) Scope of work

A contractor approved by a reviewing court under this section shall prepare only the documentation necessary to complete the relevant administrative record.

(f) Production of government information

(1) In general

On a motion of the project sponsor or a contractor approved by a reviewing court under this section, the reviewing court may order any Federal, State, or local agency to produce, by a date certain, any document, data, or expert input necessary to complete the relevant administrative record.

(2) No tolling

A failure by an agency to produce a document, data, or input by the applicable date under paragraph (1) shall not toll any deadline under this title.

(g) Deadlines for contractor work

A reviewing court shall establish deadlines for deliverables of a contractor approved by the reviewing court under this section, subject to the condition that such a deadline shall not exceed—

(1)

120 days for a complex authorization not requiring an environmental impact statement; and

(2)

240 days for a complex authorization requiring an environmental impact statement.

(h) Agency decisions on contractor-Prepared record

(1) Agency action

Not later than 30 days after the date on which a contractor approved by a reviewing court under this section submits to an applicable agency the completed documentation prepared by the contractor, the agency shall—

(A)

issue a final decision regarding the applicable authorization, based on the documentation; or

(B)

identify, including a citation to the applicable law or regulation, any specific legal deficiency in the documentation that requires correction, subject to paragraph (2)(C).

(2) Deficiencies

(A) In general

If an agency identifies a deficiency under paragraph (1)(B), the affected contractor shall correct the deficiency by not later than 90 days after the date on which the identification occurs.

(B) Action by agency

Not later than 14 days after the date of receipt of corrected documentation under subparagraph (A), an agency shall issue a final decision regarding the applicable authorization.

(C) Single identification

An agency may identify deficiencies under paragraph (1)(B) on only 1 occasion, unless the applicable reviewing court approves another identification for good cause based on a legal requirement that was not in effect at the time of the initial identification of deficiencies.

(3) Limitation

An agency may not reject any documentation prepared by a contractor approved by a reviewing court under this section based on a policy disagreement or any other discretionary factor if the documentation satisfies all applicable legal requirements.

12304. Permitting performance fund

(a) Establishment

There is established in the Treasury a fund, to be known as the Permitting Performance Fund (referred to in this section as the Fund), consisting of—

(1)

any civil penalties assessed under section 12404(c);

(2)

such amounts as are transferred to the Fund under subsection (c); and

(3)

such amounts as are appropriated to the Fund pursuant to subsection (d).

(b) Use of funds

Amounts in the Fund shall be available, without further appropriation, to pay the costs of—

(1)

any contractor approved by a reviewing court under section 12303(b); and

(2)

any penalty or award to a project sponsor of attorneys’ fees and costs ordered by a reviewing court pursuant to section 12404(b)(2)(D).

(c) Transfer of amounts

(1) Definition of covered workload

In this subsection, the term covered workload, with respect to an agency, means the total number of authorizations for covered energy projects listed in project schedules published under section 12301(c) for which the agency was identified as the responsible agency, determined by assigning a weight of 1 to each routine authorization and a weight of 4 to each complex authorization.

(2) Transfer

The Secretary of the Treasury shall transfer to the Fund from the general management account of any agency found by a reviewing court under subtitle E to be liable for an unreasonable delay an amount based on the proportion that—

(A)

the covered workload of the agency during the preceding fiscal year; bears to

(B)

the covered workload of all agencies during that preceding fiscal year.

(d) Authorization of appropriations

There are authorized to be appropriated to the Fund—

(1)

$50,000,000 for the initial capitalization of the Fund; and

(2)

thereafter, such sums as are necessary to carry out this section.

12305. Effective date

(a) In general

This subtitle shall apply to any notice of initiation submitted under section 12301(a) for a covered energy project on or after the date that is 90 days after the date of enactment of this title.

(b) Pending projects

For a covered energy project the notice of initiation for which is pending on the effective date described in subsection (a)—

(1)

this subtitle shall apply beginning on the date that is 120 days after the date of enactment of this title; and

(2)

as applicable, the completed notice date (as defined in section 12302(a)) shall be deemed to be the date that is 120 days after that date of enactment.

E Expedited Judicial Review and Enforcement

12401. Causes of action

(a) In general

Subject to subsection (b), a project sponsor of a covered energy project may file a petition in accordance with section 12402 for judicial review of—

(1)

a final agency action relating to the covered energy project;

(2)

an alleged failure by an agency—

(A)

to act on the covered energy project, including through unlawful withholding or unreasonable delay; or

(B)

to adhere to—

(i)

a milestone established for the covered energy project under section 12301(c)(3)(A); or

(ii)

a deadline applicable to the covered energy project under section 12302; or

(3)

an order, directive, suspension, revocation, or other action described in section 12501(b) of an agency relating to the covered energy project.

(b) Single petition rule

(1) In general

A project sponsor may file only 1 petition under this subtitle with respect to any single cause of action described in subsection (a).

(2) Multiple grounds

A project sponsor may file a single petition under this subtitle seeking multiple grounds for relief.

(c) Relief sought

A petition under this subtitle may seek 1 or more of the following:

(1)

Review of an order, directive, or action described in section 12501(b).

(2)

A court order compelling agency action or other relief for an unreasonable delay in the authorization process, in accordance with subtitle D.

(3)

Review of the designation of an authorization as a complex authorization pursuant to section 12301(d)(3).

(d) Intervention

(1) In general

Any person that would have standing under article III of the Constitution of the United States to challenge or defend the applicable agency action may move to intervene in a cause of action under this subtitle.

(2) Ruling

The reviewing court shall rule expeditiously on any motion to intervene under paragraph (1).

12402. Petition requirements

(a) Contents

(1) Requirements

A petition under this subtitle shall contain an affidavit, together with supporting documentation described in paragraph (2), demonstrating the grounds for the petition as follows:

(A) Subtitle f actions

A petition alleging that an agency violated section 12501 with respect to a covered energy project shall demonstrate that—

(i)

the agency issued an order or directive, revoked a permit or authorization, or carried out any other action to halt, delay, or otherwise cancel a previously authorized activity in violation of section 12501;

(ii)

the project sponsor has suffered a loss as a direct result of the action described in clause (i); and

(iii)

the compensation sought in the petition does not exceed an amount equal to 125 percent of the amount of financial loss suffered by the project sponsor as a result of that action.

(B) Unreasonable delays

A petition alleging unreasonable delay by an agency with respect to a covered energy project shall demonstrate that—

(i)

the petitioner is a project sponsor that has submitted a notice of initiation under section 12301(a) for the covered energy project;

(ii)

the notice was, on such date as the project sponsor shall specify—

(I)

determined to be complete under section 12301(b)(1); or

(II)

deemed to be complete under section 12301(b)(3)(B);

(iii)

the applicable deadline for a final decision relating to an authorization for the covered energy project under section 12302 has lapsed without the agency issuing the final decision; and

(iv)

the petitioner has suffered or will suffer harm as a result of the lapse described in clause (iii).

(C) Designations as complex

A petition seeking review of the designation of an authorization as a complex authorization shall demonstrate that the written, reasoned determination by the applicable lead agency fails to identify project-specific factors that justify the designation, in accordance with section 12301(d)(3).

(2) Documents and other information

(A) In general

A petition under this subtitle shall include, as applicable to each claim asserted in the petition—

(i)

all relevant agency correspondence (including any application for an authorization), deficiency notices, and determinations relating to a notice of initiation or project schedule for the applicable covered energy project, if any;

(ii)

a copy of each final agency action, authorization, record of decision, environmental document, or order that is the subject of the petition; and

(iii)

identification, to the maximum extent practicable, of any records similar to the records described in this subparagraph that are unavailable to the petitioner and the reasons for the unavailability.

(B) Additional information

A petition for judicial review under this subtitle may include other available relevant documents, such as expert reports, economic analyses, or affidavits from personnel, relating to—

(i)

the applicable covered energy project;

(ii)

action or inaction by an applicable agency; or

(iii)

harm suffered by the petitioner.

(b) Naming of respondents

(1) In general

In a petition under this subtitle challenging the schedule for a covered energy project under section 12301(c), or the designation of an authorization as a complex authorization under section 12301(d)(3), the head of the applicable lead agency shall be named as the respondent.

(2) Other causes of action

In a petition under this subtitle relating to a cause of action not described in paragraph (1), the head of the agency that carried out the applicable final agency action, issued the applicable order or directive, or is alleged to have unlawfully withheld or unreasonably delayed action shall be named as the respondent.

(c) Filing dates

(1) Final agency actions

A petition under this subtitle of a cause of action described in section 12401(a)(1) shall be filed not later than 60 days after the date on which the applicable agency action becomes final.

(2) Failures to act

A petition under this subtitle of a cause of action described in section 12401(a)(2) may be filed beginning on the day after the date of the applicable missed deadline or milestone.

(3) Subtitle f actions

A petition under this subtitle of a cause of action described in section 12401(a)(3) shall be filed not later than 30 days after the date on which the applicable order, directive, suspension, revocation, or other action of an agency is issued or carried out.

(d) Service

The petitioner shall serve a petition under this subtitle on—

(1)

the Attorney General of the United States;

(2)

the head of the lead agency with respect to the covered energy project that is the subject of the petition; and

(3)

each cooperating agency identified under section 12301(c)(2) in the project schedule for the covered energy project that is the subject of the petition.

12403. Judicial review

(a) Venue

(1) In general

A petition under this subtitle may be filed, at the election of the project sponsor, in—

(A)

the United States Court of Appeals for the District of Columbia Circuit;

(B)

the United States court of appeals for the circuit in which—

(i)

the covered energy project is located; or

(ii)

the project sponsor has its principal place of business; or

(C)

any United States district court that would have jurisdiction under any other applicable law (including any special statutory review provision) to review the agency action, order, directive, or failure to act that is the subject of the petition.

(2) Exclusive jurisdiction

(A) In general

The reviewing court in which a petition is filed under paragraph (1) shall have exclusive jurisdiction over—

(i)

that petition; and

(ii)

any claim under this subtitle with respect to the same cause of action described in section 12401(a).

(B) Consolidation

If 1 or more petitions concerning the same cause of action described in section 12401(a) are filed in more than 1 reviewing court, each later-filed petition shall be transferred to the reviewing court in which the initial petition was filed.

(b) Representation of respondents

A respondent named under section 12402(b) shall be represented in accordance with section 518(a) of title 28, United States Code.

(c) Standard of review

(1) In general

The reviewing court shall conduct the review of, and reach a decision regarding, a petition under this subtitle in accordance with chapter 7 of title 5, United States Code.

(2) Administrative record

(A) In general

Judicial review of a petition under this subtitle shall be based on an administrative record compiled and certified by the head of the agency named in the petition as the respondent under section 12402(b).

(B) Multiple respondents

If multiple agency heads are named in a petition as respondents under section 12402(b)—

(i)

each agency head shall compile and certify the portions of the record within the custody of that agency; and

(ii)

the lead agency, or such other agency as the reviewing court may require, shall assemble a consolidated record.

(C) Failures to act

The administrative record relating to a petition under this subtitle for a cause of action described in section 12401(a)(2) shall include, as applicable—

(i)

the notice of initiation submitted under section 12301(a);

(ii)

any completeness or deficiency designation of that notice under section 12301(b);

(iii)

the project schedule published under section 12301(c); and

(iv)

any other materials the reviewing court determines to be necessary to resolve the petition.

(d) Additional submissions

In addition to the documents and information required under section 12402(a)(2), a petitioner shall submit to the reviewing court, in accordance with a schedule established by the reviewing court, such other records and documents as are reasonable and necessary for determination of the appropriate remedy and the amount of compensation to be ordered.

(e) Discovery and record development

(1) In general

There shall be no discovery in a proceeding relating to a petition under this subtitle other than such discovery as may be ordered by the reviewing court, as the reviewing court determines to be reasonable and necessary to determine the appropriate remedy and the amount of compensation (including compensation for any violation of section 12501) to be ordered.

(2) Information, testimony, and documents

The reviewing court may require the submission of such information, the testimony of such persons, and the production of such documents as the reviewing court determines to be reasonable and necessary for purposes of this subsection.

12404. Expedited procedure; relief; penalties; appeals

(a) Expedited procedure

The reviewing court shall—

(1)

establish an expedited schedule for briefing and disposition relating to a petition under this subtitle; and

(2)

absent extraordinary circumstances, issue a decision with respect to a petition under this subtitle—

(A)

as expeditiously as practicable; but

(B)

not later than 120 days after the date on which the petition is filed.

(b) Available relief

(1) In general

On a finding by a reviewing court that a petitioner is entitled to relief under this subtitle, the reviewing court shall grant such legal, equitable, and administrative relief as the reviewing court determines to be appropriate to effectuate the purposes of this title in accordance with paragraph (2), subject to section 12501(b).

(2) Actions by reviewing court

A reviewing court that makes a finding described in paragraph (1) shall—

(A)

hold unlawful and set aside any final agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)

remand each applicable matter to the appropriate agency for further action in accordance with the direction of the reviewing court, together with a schedule and deadline for completion of those actions, which deadline shall not exceed—

(i)

180 days after the date on which the judgment is issued; or

(ii)

such longer period to which the project sponsor may agree;

(C)

in any case involving unlawful withholding or unreasonable delay, issue an order that—

(i)

compels the appropriate agency to act;

(ii)

specifies the date by which each discrete action of the agency shall be completed in order to finalize the agency review and issue a final agency decision; and

(iii)

retains the jurisdiction of the reviewing court to ensure compliance with the order;

(D)

award to a project sponsor that prevails on a claim of unreasonable delay under subtitle D reasonable attorneys’ fees and costs; and

(E)

for any action found to be in violation of section 12501, award to the project sponsor just compensation sufficient to remedy damages to the project sponsor caused by the action.

(c) Penalty for noncompliance

(1) Daily fee

A reviewing court shall assess against any agency found to have failed to comply with a schedule or order issued by the reviewing court pursuant to subsection (b)(2) a civil penalty in an amount equal to not less than $1,000, but not more than $100,000, per day of noncompliance. In determining the amount of the penalty within that range, the reviewing court shall consider the extent to which the noncompliance was within the reasonable control of the agency and whether the agency acted with diligence and good faith. A civil penalty assessed under this paragraph shall be payable only from unobligated amounts available in the general management account of the applicable agency, and no transfer or payment may be made if that unobligated balance is zero or if the transfer would reduce that unobligated balance to zero.

(2) Deposit

The amounts collected under this subsection shall be deposited in the Permitting Performance Fund established by section 12304(a).

(d) Appeals

(1) District court judgments

If a petition under this subtitle is filed in a United States district court pursuant to section 12403(a)(1)(C), any party aggrieved by the judgment of the district court may obtain review in the United States court of appeals of competent jurisdiction under chapter 83 of title 28, United States Code, subject to the condition that a notice of appeal shall be filed not later than 30 days after the date of entry of the judgment.

(2) Court of appeals original petitions

If a petition under this subtitle is filed in a United States court of appeals pursuant to subparagraph (A) or (B) of section 12403(a)(1), further review shall be as otherwise provided by law.

12405. Acceleration of certain claims by other persons

(a) Certain civil actions

A civil action authorized by Federal law seeking judicial review of a final agency action that constitutes the issuance, approval, or adoption of a complex authorization for a covered energy project may be brought in accordance with this section by a person other than a project sponsor of the covered energy project.

(b) Filing deadline

A civil action described in subsection (a) shall be filed not later than the earlier of—

(1)

the date that is 150 days after—

(A)

the date on which the applicable lead agency publishes in the Federal Register a notice of the relevant final complex authorization; or

(B)

if publication described in subparagraph (A) is not required by law, the date on which the lead agency first makes a notice described in that subparagraph publicly available; and

(2)

the applicable statutory deadline with respect to the civil action.

(c) Scope

Judicial review of a civil action described in subsection (a) shall be limited to the administrative record for the complex authorization at issue.

(d) Limited vacatur and injunctive relief

In a civil action described in subsection (a), the court may—

(1)

remand the matter to the applicable agency for further action in accordance with the direction of the court; and

(2)

in addition to such a remand, vacate or enjoin all or any part of a final agency action only if the court finds, based on the administrative record and any additional evidence properly before the court, that failure so to vacate or enjoin would result in specific, imminent, and irreparable environmental harm that cannot reasonably be avoided or mitigated through narrower relief, an additional mitigation measure, or expedited correction of the deficiency.

(e) Effect of section

Nothing in this section limits the ability of a project sponsor to bring a claim challenging an authorization for a covered energy project.

F Limiting Orders Against Fully Permitted Projects

12501. Treatment of fully permitted projects

(a) Definition of fully permitted project

In this section, the term fully permitted project means a covered energy project that has received a substantial majority of the authorizations required for the covered energy project.

(b) Prohibition

No agency or Federal official shall issue any order or directive terminating the construction or operation of a fully permitted project, revoke any permit or authorization for a fully permitted project, or take any other action to halt, suspend, delay, or terminate an authorized activity carried out to support a fully permitted project unless—

(1)

there exists—

(A)

a clear, immediate, and substantiated harm for which the Federal order, directive, or action is required to prevent, mitigate, or repair; and

(B)

no other viable alternative that would allow a previously authorized activity, such as construction, to continue; or

(2)

(A)

an applicable authorization is illegal under applicable Federal law; and

(B)

the Federal order, directive, or action is the only available remedy to address that illegality.

(c) Limitation on petitions

(1) In general

No agency may petition a court for voluntary remand of an authorization for a fully permitted project that has received a record of decision unless the project sponsor consents to the petition.

(2) In-camera review

As necessary, a court may review a petition submitted under this subsection in camera.

G Other Matters

12601. Government accountability office survey and report

Not later than 180 days after the date of enactment of this title, and not less frequently than annually thereafter, the Comptroller General of the United States shall—

(1)

conduct a survey of industry satisfaction with the Federal permitting process with respect to covered energy projects, which shall—

(A)

include questions relating to—

(i)

related Federal staffing levels and expertise;

(ii)

the costs of the permitting process; and

(iii)

recommendations for improving the permitting process; and

(B)

be carried out so as to accommodate any industry group or individual that desires to comment anonymously; and

(2)

submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a report that includes—

(A)

an evaluation of the ability of agencies to adhere to the deadlines under this title;

(B)

an evaluation of whether any energy source has been unfairly treated, including through the imposition of delays or added requirements, a lack of communication, or any other action taken to disadvantage the source in the permitting process, subject to the condition that it shall not be considered unfair treatment for purposes of this subparagraph if—

(i)

an energy source is subject to regulation or other measures due to a difference inherent in a specific technology; or

(ii)

an initiative is carried out to improve service—

(I)

for an industry; or

(II)

at a field office of the Department of Energy or the Department of the Interior; and

(C)

a description of the results of the most recent survey conducted under paragraph (1).

(b) Clerical amendment

The table of contents contained in section 101(b) of the Energy Act of 2020 (Public Law 116–260; 134 Stat. 2418) is amended by adding at the end the following:

(a) Geothermal leasing and permitting improvements

(b) Permitting compliance on non-Federal land