Ensuring fairness for specific types of covered projects

(a) Sense of Congress It is the sense of Congress that— (1) all Federal agencies shall treat all applications for Federal authorizations or permits fairly and efficiently; and (2) this section shall serve as a guarantee that fair and efficient decisionmaking shall occur after the date of enactment of this Act. (b) Definitions In this section: (1) Covered application The term covered application means a complete application for 1 or more Federal authorizations or permits. (2) Federal authorization or permit The term Federal authorization or permit means an authorization, permit, record of decision, right-of-way, finding of no significant impact, verification, extension, construction and operations plan, biological opinion, incidental take statement, concurrence, or any other approval or order that is necessary, including any determination by a Federal department or agency that additional authorizations or permits are not necessary, for the construction or operation at full capacity of a specific type of covered project. (3) Pattern of disparate treatment The term pattern of disparate treatment means, with respect to 1 specific type of covered project, an empirically demonstrated statistical pattern that— (A) shows a substantial increase, compared against the 5 most recent calendar years of empirical data on Federal authorization or permit decisions and delays for that specific type of covered project, in— (i) the percentage of Federal authorizations or permits for that 1 specific type of covered project that are unreasonably delayed beyond the applicable timeline as described in subsection (d)(1)(A)(ii); or (ii) the percentage of Federal authorizations or permits for that 1 specific type of covered project that are improperly denied; (B) persists— (i) for a Federal authorization or permit for which an environmental impact statement or environmental assessment (as those terms are defined in section 3 of the National Environmental Policy Act of 1969) are not required, over a minimum period of 180 days, at least 180 days of which occurred after the date of enactment of this Act; or (ii) for a Federal authorization or permit for which an environmental impact statement or environmental assessment (as so defined) are required, over a minimum period of 280 days, at least 280 days of which occurred after the date of enactment of this Act; and (C) is the result of an intentional course of action undertaken by the Federal Government to create such a pattern. (4) Specific type of covered project The term specific type of covered project means 1 of the following types of projects: (A) A project to produce electricity from onshore wind. (B) A project to produce electricity from offshore wind. (C) A project to produce electricity from solar. (D) An energy storage project. (E) A project to produce electricity from coal. (F) A project to produce electricity from natural gas. (G) A project to produce electricity from oil. (H) A project to produce electricity from a nuclear fission reactor. (I) A project to produce electricity from geothermal. (J) An onshore electricity transmission project. (K) An offshore electricity transmission project. (L) A natural gas pipeline project. (M) An oil pipeline project. (N) A hydrogen pipeline project. (O) A carbon dioxide pipeline project. (P) A natural gas liquids pipeline project. (Q) A project to produce coal. (R) A project to produce onshore natural gas. (S) A project to produce offshore natural gas. (T) A project to produce onshore oil. (U) A project to produce offshore oil. (V) A hardrock mining project to produce minerals, with hardrock mining projects that produce the same mineral to be considered the same specific type of covered project for purposes of this paragraph. (W) A hardrock mineral processing project to produce or expand production of hardrock minerals. (X) A project to produce electricity from hydrogen. (Y) A project to produce electricity from biomass. (Z) A project to refine or process petroleum products. (AA) A project to produce biomass. (BB) A hydropower project. (CC) A pumped storage hydropower project. (DD) A project to produce electricity from a fusion machine. (EE) A project to produce uranium. (FF) A project to enrich, convert, fabricate, reprocess, or store source material or special nuclear material (as those terms are defined in section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014)). (GG) A project to export or import liquefied natural gas. (HH) A project to liquefy natural gas or to regasify liquefied natural gas. (II) A project to export or import crude oil. (JJ) A project to export or import refined petroleum products. (KK) A project to export or import coal. (LL) A geologic carbon dioxide sequestration or storage project, including an injection well. (MM) An enhanced oil or natural gas recovery project, including a project using carbon dioxide, water, or other injectants. (NN) Long-duration battery storage. (OO) A project to refine or process crude oil. (PP) A project to refine natural gas or natural gas liquids. (QQ) An ammonia pipeline project. (RR) A produced water pipeline project. (SS) A helium pipeline project. (TT) A coal gasification project. (UU) Any other specific type of energy related project not described in subparagraphs (A) through (TT) that a United States district court of competent jurisdiction certifies shares common industrial characteristics, taking into account the specificity of the covered project types described in subparagraphs (A) through (TT). (c) Timeline for issuance of certain authorizations or permits not subject to environmental reviews For any specific type of covered project for which 1 or more Federal authorizations or permits are required, but for which Federal authorizations or permits are not agency actions for which an environmental impact statement or environmental assessment (as those terms are defined in section 3 of the National Environmental Policy Act of 1969) is required, all Federal departments and agencies shall render decisions on all applicable covered applications not later than 1 year after the date on which the latest of the covered applications is determined to be complete. (d) Judicial review (1) Cause of action (A) In general The applicant seeking a Federal authorization or permit for a specific type of covered project may bring an action in a United States district court in which the project is at least partially located alleging, subject to subparagraph (B), that after the date of enactment of this Act 1 or more Federal authorizations or permits for that specific type of covered project were— (i) improperly denied due to a pattern of disparate treatment by the Federal Government against the specific type of covered project at issue; or (ii) unreasonably delayed due to a pattern of disparate treatment by the Federal Government against the specific type of covered project at issue by more than 60 days beyond the applicable deadline described in— (I) section 107(g)(1)(A) of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a(g)(1)(A)); (II) section 107(g)(1)(B) of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a(g)(1)(B)); or (III) subsection (c). (B) Requirement (i) In general In a cause of action brought under subparagraph (A), the applicant shall have the burden of proof of showing that— (I) the relevant application satisfies all applicable Federal law; (II) the applicable Federal authorizations or permits would not, if granted, be subject to cancellation— (aa) for a violation of application Federal law; or (bb) because the Federal authorization or permit would have been obtained through fraud, intentional concealment, or material misrepresentation; and (III) the Federal authorizations or permits were improperly denied or unreasonably delayed due to a pattern of disparate treatment by the Federal Government against the specific type of covered project at issue that occurred after the date of enactment of this Act. (ii) Prima facie evidence (I) Evidence The following shall be considered by a court as prima facie evidence of a pattern of disparate treatment under clause (i)(III): (aa) Empirical evidence Empirical evidence demonstrating a pattern of improper denial or unreasonable delay with respect to the specific type of covered project at issue compared to the previous rate at which other Federal authorizations or permits were delivered for that same specific type of covered project prior to the commencement of the alleged pattern of delayed or denied Federal authorizations or permits. (bb) Supporting evidence In support of the empirical evidence described in item (aa), an applicant may provide supporting evidence, including a pattern of statements made by executive branch officials, Federal department and agency policies, Executive orders, or other official guidance that demonstrates a bias in the permitting regime against the specific type of covered project at issue, except as provided in subclause (II). (II) Exclusion Statements, policies, Executive orders, or other guidance that expresses a preference for, or opposition to, 1 or more specific types of covered projects, but is unrelated to the permitting of such projects, shall not be considered by a court as supporting evidence of a pattern of disparate treatment under subclause (I)(bb). (iii) Burden of evidentiary production (I) In general In a cause of action brought under this paragraph, if the applicant produces prima facie evidence of a pattern of disparate treatment under clause (i), the Federal Government shall have the burden to provide to the applicant and the court raw statistical data for the calendar year in which the action is brought and the preceding 5 calendar years showing, with respect to the specific type of covered project at issue— (aa) the number and percentage of projects that received all necessary Federal authorizations or permits; (bb) the number and percentage of projects that were denied 1 or more Federal authorizations or permits; and (cc) the number and percentage of projects for which 1 or more covered applications were pending for more than 60 days beyond the applicable deadline described in subsection (c). (II) Failure to produce A failure of the Federal Government to produce the data described in subclause (I) shall result in an adverse inference against the 1 or more Federal agencies named in the cause of action. (C) Record for review The court shall hear a cause of action brought under this paragraph solely on— (i) the evidence produced by the applicant; (ii) the administrative record before the agency; and (iii) any raw statistical data required to be provided under subparagraph (B)(iii). (2) Remedy (A) In general If the applicant for a specific type of covered project successfully proves that the applicable Federal authorizations or permits were improperly denied or unreasonably delayed under paragraph (1), the applicant shall be entitled to— (i) injunctive relief, as provided by applicable Federal law; (ii) reasonable attorney fees and costs of litigation, as the court determines appropriate; (iii) economic damages, including any costs associated with the applicable denial or delay, as the court determines appropriate; and (iv) damages in an amount equal to not less than 50 percent and not more than 100 percent of the total reasonably expected cost of construction of the project, which amount shall be determined by the court taking into consideration— (I) the degree to which the Federal interference in the applicable specific type of covered project occurred due to bad faith; (II) the degree to which there exists a pattern of similar Federal interference in specific types of covered projects; and (III) the actual degree of economic harm to the project sponsor or operator. (B) Requirement To receive a remedy under subparagraph (A), the applicant shall demonstrate the technical and financial ability to construct the applicable specific type of covered project. (3) Project completion An applicant that receives a remedy under paragraph (2) shall, after obtaining all necessary Federal authorizations or permits and absent force majeure— (A) complete the applicable specific type of covered project; or (B) repay all remedies received under paragraph (2). (4) Source of funds Amounts awarded under paragraph (2)— (A) shall be paid from the fund described in section 1304 of title 31, United States Code; and (B) shall not be subject to the availability of appropriations. (5) Prohibition on class actions Rule 23 of the Federal Rules of Civil Procedure shall not apply to any action brought under this section, and no party with a claim under this section or any other person may sue as a representative party on behalf of any member of a specific type of covered project subject to Rule 23 of the Federal Rules of Civil Procedure. (6) Limitation on bringing claims With respect to a claim filed under this section after the date of enactment of this Act— (A) no claim related to a Federal authorization or permit for which an environmental impact statement or environmental assessment (as those terms are defined in section 3 of the National Environmental Policy Act of 1969) is required may be filed until the date that is 280 days after that date of enactment; and (B) no claim related to a Federal authorization or permit for which an environmental impact statement or environmental assessment (as so defined) is not required may be filed until the date that is 180 days after that date of enactment.