Collapse to view only § 4370m-1. Federal Permitting Improvement Steering Council
- § 4370m. Definitions
- § 4370m-1. Federal Permitting Improvement Steering Council
- § 4370m-2. Permitting process improvement
- § 4370m-3. Interstate compacts
- § 4370m-4. Coordination of required reviews
- § 4370m-5. Delegated State permitting programs
- § 4370m-6. Litigation, judicial review, and savings provision
- § 4370m-7. Reports
- § 4370m-8. Funding for governance, oversight, and processing of environmental reviews and permits
- § 4370m-9. Application
- § 4370m-10. GAO report
- § 4370m-11. Savings provision
- § 4370m-12. Repealed.
§ 4370m. DefinitionsIn this subchapter:
(1) Agency
(2) Agency CERPO
(3) Authorization
(4) Cooperating agency
(5) Council
(6) Covered project
(A) In generalThe term “covered project” means any activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing, semiconductors, artificial intelligence and machine learning, high-performance computing and advanced computer hardware and software, quantum information science and technology, data storage and data management, cybersecurity, carbon capture, energy storage, or any other sector as determined by a majority vote of the Council that—
(i)(I) is subject to NEPA;(II) is likely to require a total investment of more than $200,000,000; and(III) does not qualify for abbreviated authorization or environmental review processes under any applicable law;
(ii) is covered by a programmatic plan or environmental review developed for the primary purpose of facilitating development of carbon dioxide pipelines;
(iii) is—(I) subject to NEPA;(II) sponsored by an Indian Tribe (as defined in section 5304 of title 25), an Alaska Native Corporation, a Native Hawaiian organization (as defined in section 7517 of title 20), the Department of Hawaiian Home Lands, or the Office of Hawaiian Affairs; and(III) located on land owned or under the jurisdiction of the entity that sponsors the activity under subclause (II); or
(iv) is subject to NEPA and the size and complexity of which, in the opinion of the Council, make the project likely to benefit from enhanced oversight and coordination, including a project likely to require—(I) authorization from or environmental review involving more than 2 Federal agencies; or(II) the preparation of an environmental impact statement under NEPA.
(B) ExclusionThe term “covered project” does not include—
(i) any project subject to section 139 of title 23; or
(ii) any project subject to section 2348 of title 33.
(C) InclusionFor purposes of subparagraph (A), construction of infrastructure for carbon capture includes construction of—
(i) any facility, technology, or system that captures, utilizes, or sequesters carbon dioxide emissions, including projects for direct air capture (as defined in paragraph (6)(B)(i) of section 7403(g) of this title); and
(ii) carbon dioxide pipelines.
(7) Dashboard
(8) Environmental assessment
(9) Environmental document
(A) In general
(B) InclusionsThe term “environmental document” includes—
(i) any document that is a supplement to a document described in subparagraph (A); and
(ii) a document prepared pursuant to a court order.
(10) Environmental impact statement
(11) Environmental review
(12) Executive Director
(13) Facilitating agency
(14) Inventory
(15) Lead agency
(16) NEPA
(17) Participating agency
(18) Project sponsor
(Pub. L. 114–94, div. D, title XLI, § 41001, Dec. 4, 2015, 129 Stat. 1741; Pub. L. 116–260, div. S, § 102(d)(1), Dec. 27, 2020, 134 Stat. 2250; Pub. L. 117–58, div. G, title VIII, § 70801(a), Nov. 15, 2021, 135 Stat. 1287; Pub. L. 117–173, § 1, Aug. 16, 2022, 136 Stat. 2103; Pub. L. 118–5, div. C, title III, § 323, June 3, 2023, 137 Stat. 46.)
§ 4370m–1. Federal Permitting Improvement Steering Council
(a) Establishment
(b) Composition
(1) ChairThe Executive Director shall—
(A) be appointed by the President; and
(B) serve as Chair of the Council.
(2) Council members
(A) In general
(i) Designation by head of agency(I) In general(II) Redesignation
(ii) Qualifications
(iii) Support(I) In general(II) Reporting
(B) Heads of agenciesThe individuals that shall each designate a councilmember under this subparagraph are as follows:
(i) The Secretary of Agriculture.
(ii) The Secretary of the Army.
(iii) The Secretary of Commerce.
(iv) The Secretary of the Interior.
(v) The Secretary of Energy.
(vi) The Secretary of Transportation.
(vii) The Secretary of Defense.
(viii) The Administrator of the Environmental Protection Agency.
(ix) The Chairman of the Federal Energy Regulatory Commission.
(x) The Chairman of the Nuclear Regulatory Commission.
(xi) The Secretary of Homeland Security.
(xii) The Secretary of Housing and Urban Development.
(xiii) The Chairman of the Advisory Council on Historic Preservation.
(xiv) Any other head of a Federal agency that the Executive Director may invite to participate as a member of the Council.
(3) Additional members
(c) Duties
(1) Executive Director
(A) Inventory developmentThe Executive Director, in consultation with the Council, shall—
(i) not later than 180 days after December 4, 2015, establish an inventory of covered projects that are pending the environmental review or authorization of the head of any Federal agency;
(ii)(I) categorize the projects in the inventory as appropriate, based on sector and project type; and(II) for each category, identify the types of environmental reviews and authorizations most commonly involved; and
(iii) add a covered project to the inventory after receiving a notice described in section 4370m–2(a)(1) of this title.
(B) Facilitating agency designationThe Executive Director, in consultation with the Council, shall—
(i) designate a facilitating agency for each category of covered projects described in subparagraph (A)(ii); and
(ii) publish the list of designated facilitating agencies for each category of projects in the inventory on the Dashboard in an easily accessible format.
(C) Performance schedules
(i) In general
(ii) Requirements(I) In general(II) Goal(aa) In general(bb) Exception(III) Limit(aa) In general(bb) Calculation of average time(cc) Completion date
(iii) Review and revision
(D) GuidanceThe Executive Director, in consultation with the Council, may recommend to the Director of the Office of Management and Budget or to the Council on Environmental Quality, as appropriate, that guidance be issued as necessary for agencies—
(i) to carry out responsibilities under this subchapter; and
(ii) to effectuate the adoption by agencies of the best practices and recommendations of the Council described in paragraph (2).
(E) Personnel
(2) Council
(A) Recommendations
(i) In general
(ii) Update
(B) Best practicesNot less frequently than annually, the Council shall issue recommendations on the best practices for improving the Federal permitting process for covered projects, which may include—
(i) enhancing early stakeholder engagement, including—(I) engaging with Native American stakeholders to ensure that project sponsors and agencies identify potential natural, archeological, and cultural resources and locations of historic and religious significance in the area of a covered project; and(II) fully considering and, as appropriate, incorporating recommendations provided in public comments on any proposed covered project;
(ii) ensuring timely decisions regarding environmental reviews and authorizations, including through the development of performance metrics;
(iii) improving coordination between Federal and non-Federal governmental entities, including through the development of common data standards and terminology across agencies;
(iv) increasing transparency;
(v) reducing information collection requirements and other administrative burdens on agencies, project sponsors, and other interested parties;
(vi) developing and making available to applicants appropriate geographic information systems and other tools;
(vii) creating and distributing training materials useful to Federal, State, tribal, and local permitting officials;
(viii) in coordination with the Executive Director, improving preliminary engagement with project sponsors in developing coordinated project plans;
(ix) using programmatic assessments, templates, and other tools based on the best available science and data; and
(x) addressing other aspects of infrastructure permitting, as determined by the Council.
(C) Meetings
(3) Agency CERPOsAn agency CERPO shall—
(A) advise the respective agency councilmember on matters related to environmental reviews and authorizations, including agency compliance with intermediate and final completion dates described in coordinated project plans;
(B) provide technical support, when requested to facilitate efficient and timely processes for environmental reviews and authorizations for covered projects under the jurisdictional responsibility of the agency, including supporting timely identification and resolution of potential disputes within the agency or between the agency and other Federal agencies;
(C) analyze agency environmental review and authorization processes, policies, and authorities and make recommendations to the respective agency councilmember for ways to standardize, simplify, and improve the efficiency of the processes, policies, and authorities, including by implementing guidance issued under paragraph (1)(D) and other best practices, including the use of information technology and geographic information system tools within the agency and across agencies, to the extent consistent with existing law; and
(D) review and develop training programs for agency staff that support and conduct environmental reviews or authorizations.
(Pub. L. 114–94, div. D, title XLI, § 41002, Dec. 4, 2015, 129 Stat. 1743; Pub. L. 117–58, div. G, title VIII, § 70801(b), (i), Nov. 15, 2021, 135 Stat. 1288, 1294; Pub. L. 117–328, div. E, title VI, § 635(a), Dec. 29, 2022, 136 Stat. 4703.)
§ 4370m–2. Permitting process improvement
(a) Project initiation and designation of participating agencies
(1) Notice
(A) In general
(B) Default designation
(C) ContentsEach notice described in subparagraph (A) shall include—
(i) a statement of the purposes and objectives of the proposed project;
(ii) a concise description, including the general location of the proposed project and a summary of geospatial information, if available, illustrating the project area and the locations, if any, of environmental, cultural, and historic resources;
(iii) a statement regarding the technical and financial ability of the project sponsor to construct the proposed project;
(iv) a statement of any Federal financing, environmental reviews, and authorizations anticipated to be required to complete the proposed project; and
(v) an assessment that the proposed project meets the definition of a covered project under section 4370m of this title and a statement of reasons supporting the assessment.
(D) ConfidentialityAny information relating to Native American natural, cultural, and historical resources submitted in a notice by a project sponsor under subparagraph (A) shall be—
(i) kept confidential; and
(ii) exempt from the disclosure requirements under section 552 of title 5 (commonly known as the “Freedom of Information Act”) and the Federal Advisory Committee Act (5 U.S.C. App.).1
1 See References in Text note below.
(2) Invitation
(A) In generalNot later than 21 calendar days after the date on which the Executive Director must make a specific entry for the project on the Dashboard under subsection (b)(2)(A), the facilitating agency or lead agency, as applicable, shall—
(i) identify all Federal and non-Federal agencies and governmental entities likely to have financing, environmental review, authorization, or other responsibilities with respect to the proposed project; and
(ii) invite all Federal agencies identified under clause (i) to become a participating agency or a cooperating agency, as appropriate, in the environmental review and authorization management process described in section 4370m–4 of this title.
(B) Deadlines
(3) Participating and cooperating agencies
(A) In generalAn agency invited under paragraph (2) shall be designated as a participating or cooperating agency for a covered project, unless the agency informs the facilitating or lead agency, as applicable, and the Executive Director in writing before the deadline under paragraph (2)(B) that the agency—
(i) has no jurisdiction or authority with respect to the proposed project; or
(ii) does not intend to exercise authority related to, or submit comments on, the proposed project.
(B) Changed circumstances
(4) Effect of designationThe designation described in paragraph (3) shall not—
(A) give the participating agency authority or jurisdiction over the covered project; or
(B) expand any jurisdiction or authority a cooperating agency may have over the proposed project.
(5) Lead agency designation
(A) In general
(B) Redesignation of facilitating agency
(6) Change of facilitating or lead agency
(A) In general
(B) Resolution of dispute
(b) Permitting dashboard
(1) Requirement to maintain
(A) In general
(B) Specific and searchable entry
(2) Additions
(A) In general
(i) Existing projects
(ii) New projects
(iii) Projects other than covered projects(I) In general(II) RequirementsNot later than 14 days after the date on which the Executive Director directs the lead agency to create a specific entry on the Dashboard for a project described in subclause (I), the lead agency shall create and maintain a specific entry on the Dashboard for the project that contains—(aa) a comprehensive permitting timetable, as described in subsection (c)(2)(A);(bb) the status of the compliance of each lead agency, cooperating agency, and participating agency with the permitting timetable required under item (aa);(cc) any modifications of the permitting timetable required under item (aa), including an explanation as to why the permitting timetable was modified; and(dd) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant language of the community or communities most affected by the project, as that information becomes available.
(B) Explanation
(C) Final determinationNot later than 14 days after receiving an explanation described in subparagraph (B), the Executive Director shall—
(i) make a final and conclusive determination as to whether the project is a covered project; and
(ii) if the Executive Director determines that the project is a covered project, create a specific entry on the Dashboard for the covered project.
(3) Postings by agencies
(A) In generalFor each covered project added to the Dashboard under paragraph (2), the facilitating or lead agency, as applicable, and each cooperating and participating agency shall post to the Dashboard—
(i) a hyperlink that directs to a website that contains, to the extent consistent with applicable law—(I) the notification submitted under subsection (a)(1);(II)(aa) where practicable, the application and supporting documents, if applicable, that have been submitted by a project sponsor for any required environmental review or authorization; or(bb) a notice explaining how the public may obtain access to such documents;(III) a description of any Federal agency action taken or decision made that materially affects the status of a covered project;(IV) any significant document that supports the action or decision described in subclause (III);(V) information on the status of mitigation measures that were agreed to as part of the environmental review and permitting process, including whether and when the mitigation measures have been fully implemented; and(VI) a description of the status of any litigation to which the agency is a party that is directly related to the project, including, if practicable, any judicial document made available on an electronic docket maintained by a Federal, State, or local court;
(ii) any document described in clause (i) that is not available by hyperlink on another website; and
(iii) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant language of the community or communities most affected by the project, as that information becomes available.
(B) Deadline
(4) Postings by the Executive DirectorThe Executive Director shall publish to the Dashboard—
(A) the permitting timetable established under subparagraph (A) or (C) of subsection (c)(2);
(B) the status of the compliance of each agency with the permitting timetable;
(C) any modifications of the permitting timetable;
(D) an explanation of each modification described in subparagraph (C); and
(E) any memorandum of understanding established under subsection (c)(3)(B).
(c) Coordination and timetables
(1) Coordinated project plan
(A) In general
(B) Required informationThe Coordinated Project Plan shall include the following information and be updated by the facilitating or lead agency, as applicable, at least once per quarter:
(i) A list of, and roles and responsibilities for, all entities with environmental review or authorization responsibility for the project.
(ii) A permitting timetable, as described in paragraph (2), setting forth a comprehensive schedule of dates by which all environmental reviews and authorizations, and to the maximum extent practicable, State permits, reviews and approvals must be made.
(iii) A discussion of potential avoidance, minimization, and mitigation strategies, if required by applicable law and known.
(iv) Plans and a schedule for public and tribal outreach and coordination, to the extent required by applicable law.
(C) Memorandum of understanding
(2) Permitting timetable
(A) Establishment
(B) Factors for considerationIn establishing the permitting timetable under subparagraph (A), the facilitating or lead agency shall follow the performance schedules established under section 4370m–1(c)(1)(C) of this title, but may vary the timetable based on relevant factors, including—
(i) the size and complexity of the covered project;
(ii) the resources available to each participating agency;
(iii) the regional or national economic significance of the project;
(iv) the sensitivity of the natural or historic resources that may be affected by the project;
(v) the financing plan for the project; and
(vi) the extent to which similar projects in geographic proximity to the project were recently subject to environmental review or similar procedures under State law.
(C) Dispute resolution
(i) In general
(ii) Disputes
(iii) Final resolutionAny action taken by the Director of the Office of Management and Budget in the resolution of a dispute under clause (ii) shall—(I) be final and conclusive; and(II) not be subject to judicial review.
(D) Modification after approval
(i) In generalThe facilitating or lead agency, as applicable, may modify a permitting timetable established under subparagraph (A) only if—(I) the facilitating or lead agency, as applicable, consults with the Executive Director regarding the potential modification not less than 15 days before engaging in the consultation under subclause (II);(II) the facilitating or lead agency, as applicable, and the affected cooperating agencies, after consultation with the participating agencies, the Executive Director, and the project sponsor, agree to a different completion date;(III) the facilitating agency or lead agency, as applicable, or the affected cooperating agency provides a written justification for the modification; and(IV) in the case of a modification that would necessitate an extension of a final completion date under a permitting timetable established under subparagraph (A) to a date more than 30 days after the final completion date originally established under subparagraph (A), the facilitating or lead agency submits a request to modify the permitting timetable to the Executive Director, who shall consult with the project sponsor and make a determination on the record, based on consideration of the relevant factors described under subparagraph (B), whether to grant the facilitating or lead agency, as applicable, authority to make such modification.
(ii) Completion date
(iii) Limitation on length of modifications(I) In general(II) Additional extensions
(iv) Limitation on judicial reviewThe following shall not be subject to judicial review:(I) A determination by the Executive Director under clause (i)(III).(II) A determination under clause (iii)(II) by the Director of the Office of Management and Budget to permit the Executive Director to authorize extensions of a permitting timetable.
(E) Consistency with other time periods
(F) Conforming to permitting timetables
(i) In general
(ii) Failure to conformIf a Federal agency fails to conform with an intermediate or final completion date for agency action on a covered project or reasonably believes the agency will fail to conform with a completion date 30 days before such a completion date, the agency shall—(I) promptly submit to the Executive Director for publication on the Dashboard an explanation of the specific reasons for failing or reasonably believing the agency will fail to conform to the completion date and a proposal for an alternative completion date;(II) in consultation with the facilitating or lead agency, as applicable, establish an alternative completion date; and(III) each month thereafter until the agency has taken final action on the delayed authorization or review, submit to the Executive Director for posting on the Dashboard a status report describing any agency activity related to the project.
(G) Abandonment of covered project
(i) In general
(ii) Failure to respond
(iii) Publication to Dashboard
(3) Cooperating State, local, or tribal governments
(A) State authorityIf the Federal environmental review is being implemented within the boundaries of a State, the State, consistent with State law, may choose to participate in the environmental review and authorization process under this subsection and to make subject to the process all State agencies that—
(i) have jurisdiction over the covered project;
(ii) are required to conduct or issue a review, analysis, opinion, or statement for the covered project; or
(iii) are required to make a determination on issuing a permit, license, or other approval or decision for the covered project.
(B) Coordination
(C) Memorandum of understanding
(i) In general
(ii) Submission to Executive Director
(D) Applicability
(d) Early consultationThe facilitating or lead agency, as applicable, shall provide an expeditious process for project sponsors to confer with each cooperating and participating agency involved and, not later than 60 days after the date on which the project sponsor submits a request under this subsection, to have each such agency provide to the project sponsor information concerning—
(1) the availability of information and tools, including pre-application toolkits, to facilitate early planning efforts;
(2) key issues of concern to each agency and to the public; and
(3) issues that must be addressed before an environmental review or authorization can be completed.
(e) Cooperating agency
(1) In general
(2) Effect on other designation
(3) Limitation on designation
(f) Reporting status of other projects on Dashboard
(1) In generalOn request of the Executive Director, the Secretary and the Secretary of the Army shall use best efforts to provide information for inclusion on the Dashboard on projects subject to section 139 of title 23 and section 2348 of title 33 likely to require—
(A) a total investment of more than $200,000,000; and
(B) an environmental impact statement under NEPA.
(2) Effect of inclusion on Dashboard
(Pub. L. 114–94, div. D, title XLI, § 41003, Dec. 4, 2015, 129 Stat. 1747; Pub. L. 117–58, div. G, title VIII, § 70801(c), Nov. 15, 2021, 135 Stat. 1289.)
§ 4370m–3. Interstate compacts
(a) In general
(b) Regional infrastructure
(Pub. L. 114–94, div. D, title XLI, § 41004, Dec. 4, 2015, 129 Stat. 1755.)
§ 4370m–4. Coordination of required reviews
(a) Concurrent reviews
To integrate environmental reviews and authorizations, each agency shall, to the maximum extent practicable—
(1) carry out the obligations of the agency with respect to a covered project under any other applicable law concurrently, and in conjunction with, other environmental reviews and authorizations being conducted by other cooperating or participating agencies, including environmental reviews and authorizations required under NEPA, unless the agency determines that doing so would impair the ability of the agency to carry out the statutory obligations of the agency;
(2) formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner; and
(3) where an environmental impact statement is required for a project, prepare a single, joint interagency environmental impact statement for the project unless the lead agency provides justification in the coordinated project plan that multiple environmental documents are more efficient for project review and authorization.
(b) Adoption, incorporation by reference, and use of documents
(1) Use of existing documents
(A) In general
(B) Guidance by CEQ
(2) NEPA obligations
(3) Supplementation of State documents
If the lead agency adopts or incorporates analysis and documentation described in paragraph (1), the lead agency shall prepare and publish a supplemental document if the lead agency determines that during the period after preparation of the analysis and documentation and before the adoption or incorporation—
(A) a significant change has been made to the covered project that is relevant for purposes of environmental review of the project; or
(B) there has been a significant circumstance or new information has emerged that is relevant to the environmental review for the covered project.
(4) Comments
If a lead agency prepares and publishes a supplemental document under paragraph (3), the lead agency shall solicit comments from other agencies and the public on the supplemental document for a period of not more than 45 days, beginning on the date on which the supplemental document is published, unless—
(A) the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or
(B) the lead agency extends the deadline for good cause.
(5) Notice of outcome of environmental review
(c) Alternatives analysis
(1) Participation
(A) In general
(B) Determination
(2) Range of alternatives
(A) In general
(B) Alternatives required by law
(3) Methodologies
(A) In general
(B) Environmental review
(4) Preferred alternative
With the concurrence of the cooperating agencies with jurisdiction under Federal law and at the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a higher level of detail than other alternatives to facilitate the development of mitigation measures or concurrent compliance with other applicable laws if the lead agency determines that—
(A) the development of the higher level of detail will not prevent the lead agency from making an impartial decision as to whether to accept another alternative that is being considered in the environmental review; and
(B) the preferred and other alternatives are developed in sufficient detail to enable the public to comment on the alternatives.
(d) Environmental review comments
(1) Comments on draft environmental impact statement
For comments by an agency or the public on a draft environmental impact statement, the lead agency shall establish a comment period of not less than 45 days and not more than 60 days after the date on which a notice announcing availability of the environmental impact statement is published in the Federal Register, unless—
(A) the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or
(B) the lead agency, in consultation with each cooperating agency, extends the deadline for good cause.
(2) Other review and comment periods
For all other review or comment periods in the environmental review process described in parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations), the lead agency shall establish a comment period of not more than 45 days after the date on which the materials on which comment is requested are made available, unless—
(A) the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or
(B) the lead agency extends the deadline for good cause.
(e) Issue identification and resolution
(1) Cooperation
(2) Lead agency responsibilities
(A) In general
(B) Sources of information
(3) Cooperating and participating agency responsibilities
Each cooperating and participating agency shall—
(A) identify, as early as practicable, any issues of concern regarding any potential environmental impacts of the covered project, including any issues that could substantially delay or prevent an agency from completing any environmental review or authorization required for the project; and
(B) communicate any issues described in subparagraph (A) to the project sponsor.
(f) Record of decision
(g) Categories of projects
(Pub. L. 114–94, div. D, title XLI, § 41005, Dec. 4, 2015, 129 Stat. 1755; Pub. L. 117–58, div. G, title VIII, § 70801(d), Nov. 15, 2021, 135 Stat. 1291.)
§ 4370m–5. Delegated State permitting programs
(a) In general
If a Federal statute permits a Federal agency to delegate to or otherwise authorize a State to issue or otherwise administer a permit program in lieu of the Federal agency, the Federal agency with authority to carry out the statute shall—
(1) on publication by the Council of best practices under section 4370m–1(c)(2)(B) of this title, initiate a national process, with public participation, to determine whether and the extent to which any of the best practices are generally applicable on a delegation- or authorization-wide basis to permitting under the statute; and
(2) not later than 2 years after December 4, 2015, make model recommendations for State modifications of the applicable permit program to reflect the best practices described in section 4370m–1(c)(2)(B) of this title, as appropriate.
(b) Best practices
(Pub. L. 114–94, div. D, title XLI, § 41006, Dec. 4, 2015, 129 Stat. 1758.)
§ 4370m–6. Litigation, judicial review, and savings provision
(a) Limitations on claims
(1) In generalNotwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of any authorization issued by a Federal agency for a covered project shall be barred unless—
(A) the claim is filed not later than 2 years after the date of publication in the Federal Register of notice of final agency action on the authorization, unless a shorter time is specified in the Federal law under which judicial review is allowed; and
(B) in the case of an action pertaining to an environmental review conducted under NEPA—
(i) the claim is filed by a party that submitted a comment during the environmental review; and
(ii) any commenter filed a sufficiently detailed comment so as to put the lead agency on notice of the issue on which the party seeks judicial review, or the lead agency did not provide a reasonable opportunity for such a comment on that issue.
(2) New information
(A) In general
(B) Separate action
(3) Rule of construction
(b) Preliminary injunctive reliefIn addition to considering any other applicable equitable factors, in any action seeking a temporary restraining order or preliminary injunction against an agency or a project sponsor in connection with review or authorization of a covered project, the court shall—
(1) consider the potential effects on public health, safety, and the environment, and the potential for significant negative effects on jobs resulting from an order or injunction; and
(2) not presume that the harms described in paragraph (1) are reparable.
(c) Judicial review
(d) Savings clauseNothing in this subchapter—
(1) supersedes, amends, or modifies any Federal statute or affects the responsibility of any Federal officer to comply with or enforce any statute; or
(2) creates a presumption that a covered project will be approved or favorably reviewed by any agency.
(e) LimitationsNothing in this subchapter preempts, limits, or interferes with—
(1) any practice of seeking, considering, or responding to public comment; or
(2) any power, jurisdiction, responsibility, or authority that a Federal, State, or local governmental agency, metropolitan planning organization, Indian tribe, or project sponsor has with respect to carrying out a project or any other provisions of law applicable to any project, plan, or program.
(Pub. L. 114–94, div. D, title XLI, § 41007, Dec. 4, 2015, 129 Stat. 1758; Pub. L. 117–58, div. G, title VIII, § 70801(e), Nov. 15, 2021, 135 Stat. 1293.)
§ 4370m–7. Reports
(a) Reports to Congress
(1) Executive Director annual report
(A) In general
(B) Opportunity to include comments
(2) Quarterly agency performance report
(3) Agency best practices report
(b) Comptroller general report
Not later than 3 years after December 4, 2015, the Comptroller General of the United States shall submit to Congress a report that describes—
(1) agency progress in making improvements consistent with the best practices issued under section 4370m–1(c)(2)(B) of this title; and
(2) agency compliance with the performance schedules established under section 4370m–1(c)(1)(C) of this title.
(Pub. L. 114–94, div. D, title XLI, § 41008, Dec. 4, 2015, 129 Stat. 1760; Pub. L. 117–58, div. G, title VIII, § 70801(f), Nov. 15, 2021, 135 Stat. 1293.)
§ 4370m–8. Funding for governance, oversight, and processing of environmental reviews and permits
(a) In general
(b) Reasonable costs
(c) Fee structure
The fee structure established under subsection (a) shall—
(1) be developed in consultation with affected project proponents, industries, and other stakeholders;
(2) exclude parties for which the fee would impose an undue financial burden or is otherwise determined to be inappropriate; and
(3) be established in a manner that ensures that the aggregate amount of fees collected for a fiscal year is estimated not to exceed 20 percent of the total estimated costs for the fiscal year for the resources allocated for the conduct of the environmental reviews and authorizations covered by this subchapter, as determined by the Director of the Office of Management and Budget.
(d) Environmental Review Improvement Fund
(1) In general
(2) Availability
(3) Transfer
(e) Effect on permitting
(f) Transfer of appropriated funds
(1) In general
(2) Limitation
(Pub. L. 114–94, div. D, title XLI, § 41009, Dec. 4, 2015, 129 Stat. 1760; Pub. L. 117–58, div. G, title VIII, § 70801(g), Nov. 15, 2021, 135 Stat. 1293; Pub. L. 117–328, div. E, title VI, § 635(b), Dec. 29, 2022, 136 Stat. 4704.)
§ 4370m–9. Application
This subchapter applies to any covered project for which—
(1) a notice is filed under section 4370m–2(a)(1) of this title; or
(2) an application or other request for a Federal authorization is pending before a Federal agency 90 days after December 4, 2015.
(Pub. L. 114–94, div. D, title XLI, § 41010, Dec. 4, 2015, 129 Stat. 1761.)
§ 4370m–10. GAO report
Not later than 3 years after December 4, 2015, the Comptroller General of the United States shall submit to Congress a report that includes an analysis of whether the provisions of this subchapter could be adapted to streamline the Federal permitting process for smaller projects that are not covered projects.
(Pub. L. 114–94, div. D, title XLI, § 41011, Dec. 4, 2015, 129 Stat. 1761.)
§ 4370m–11. Savings provision
Nothing in this subchapter amends the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(Pub. L. 114–94, div. D, title XLI, § 41012, Dec. 4, 2015, 129 Stat. 1761.)
§ 4370m–12. Repealed. Pub. L. 117–58, div. G, title VIII, § 70801(h), Nov. 15, 2021, 135 Stat. 1294