Help from the lawyers at TSW would be greatly appreciated for this section.
SEC. 121. Commonsense litigation reform.
(a) In general.—A court shall not enjoin a covered agency action if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.
Maybe our legal friends can help us understand here, 1) what, if any criteria do judges use now? 2) Does this make extra work for judges (would they have to come to a pre-decision and do more work?)
(b) Balancing short-and long-term effects of covered agency action in considering injunctive relief.—As part of its weighing the equities while considering any request for an injunction that applies to a covered agency action, the court reviewing such action shall balance the impact to the ecosystem likely affected by such action of—
(1) the short- and long-term effects of undertaking such action; against
(2) the short- and long-term effects of not undertaking such action.
I don’t know how this will help.. some judges will think cutting trees is bad and wildfires won’t happen while the project is enjoined, and others think the other way. Judges, who are lawyers, tend to write really well, and will be describe quite eloquently how their decisions fit this requirement. Plus they make take some separation of powers umbrage, which I don’t think will help. Judges are, after all, necessarily human.
(c) Limitations on judicial review.—
(1) IN GENERAL.—Notwithstanding any other provision of law (except this section), in the case of a claim arising under Federal law seeking judicial review of a covered agency action—
(A) a court shall not hold unlawful, set aside, or otherwise limit, delay, stay, vacate, or enjoin such agency action unless the court determines that—
(i) such action poses or will pose a risk of a proximate and substantial environmental harm; and
(ii) there is no other equitable remedy available as a matter of law; and
(B) if a court determines that subparagraph (A) does not apply to the covered agency action the only remedy the court may order with regard to such agency action is to remand the matter to the agency with instructions to, during the 180-day period beginning on the date of the order, take such additional actions as may be necessary to redress any legal wrong suffered by, or adverse effect on, the plaintiff, except such additional actions may not include the preparation of a new agency document unless the court finds the agency was required and failed to prepare such agency document.
(2) EFFECT OF REMAND.—In the case of a covered agency action to which paragraph (1)(B) applies, the agency may—
(A) continue to carry out such agency action to the extent the action does not impact the additional actions required pursuant to such paragraph; and
(B) if the agency action relates to an agency document, use any format to correct such document (including a supplemental environmental document, memorandum, or errata sheet).
This seems to be about “when courts determine that something needs to be done with the document, just fix it don’t do a new document (unless..)”. This seems, together with the 180 day agency requirement, it would help with “you didn’t do this”, FS issues new doc, “you didn’t do that” recursive court cases, which are probably just as annoying for judges and their workload as for the agency.
(d) Limitations on claims.—Notwithstanding any other provision of law (except this section), a claim arising under Federal law seeking judicial review of a covered agency action shall be barred unless—
(1) with respect to an agency document or the application of a categorical exclusion noticed in the Federal Register, such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the fireshed management project relating to such agency document or application, unless a shorter period is specified in such Federal law;
(2) in the case of an agency document or the application of a categorical exclusion not described in paragraph (1), such claim is filed not later than 120 days after the date that is the earlier of—
(A) the date on which such agency document or application is published; and
(B) the date on which such agency document or application is noticed; and
(3) in the case of a covered agency action for which there was a public comment period, such claim—
(A) is filed by a party that—
(i) participated in the administrative proceedings regarding the fireshed management project relating to such action; and
(ii) submitted a comment during such public comment period and such comment was sufficiently detailed to put the applicable agency on notice of the issue upon which the party seeks judicial review; and
(B) is related to such comment.
The time limit seems useful since this says that the party filing the claim must have participated in the administrative proceedings and submitted a comment. This also streamlines the process such that it requires the plaintiffs to have specific claims related to previous concerns. This signals to the agency what the real issues are. Perhaps it would relieve plaintiffs of writing “kitchen-sinkery” complaints?
(e) Definitions.—ln this section:
(1) AGENCY DOCUMENT.—The term “agency document” means, with respect to a fireshed management project, a record of decision, environmental document, or programmatic environmental document.
(2) COVERED AGENCY ACTION.—The term “covered agency action” means—
(A) the establishment of a fireshed management project by an agency;
(B) the application of a categorical exclusion to a fireshed management project;
(C) the preparation of any agency document for a fireshed management project; or
(D) any other agency action as part of a fireshed management project.
(3) NEPA TERMS.—The terms “categorical exclusion”, “environmental document”, and “programmatic environmental document” have the meanings given such terms, respectively, in section 111 of the National Environmental Policy Act of 1969 (42 U.S.C. 4336e).
In general terms, it’s an effort by one or more federal lawmakers to trim the sails of the Luddite-industrial complex and its endless public-lands lawsuits seeking to block anything and everything.
Who has introduced this legislation? Because the Luddite-industrial complex is a key component of the Democrats’ base of support, it is unlikely to advance in the Senate. Sen. Schumer will block it.
I was on a call with a House D staffer and asked how they got the 55 Ds on board. He said “talking to them and giving them their side of the story”. Ironically, the D cosponsor is from San Diego, so the “it’s all the timber industry” did not work as an argument. When I think about “who would go in and make the supportive argument” I realize that where there is no timber industry, there is no one to show up and support the bill, except maybe folks who want the bucks.
That might be Rep. Scott Peters (D-San Diego), who’s one of the more moderate House Democrats. I am impressed that 55 Democrats support this legislation, if that figure is accurate. The contradictions and hypocrisies of the Luddite-industrial complex may, albeit years later than one would wish, finally be having an impact on some Democrats.
Like I said in another post, it would be interesting to map the Districts of the supporters. I was hoping the Students here would do that. Perhaps there are no students 🙁
As far as I can tell all the D cosponsors are from Calif. https://www.congress.gov/bill/118th-congress/house-bill/8790/cosponsors
I found the vote here https://clerk.house.gov/Votes/2024448
It’s pretty interesting.. D from Mass yea, D from Vermont nay, D’s from Oregon all nay..
The California delegation’s support for the bill may be related to the massive wildfire-related losses that PG&E has suffered (and will presumably continue to suffer).
“Finally, a significant risk to communities remains hazard trees
within utility rights-of-way. The largest single wildfire in California
state history, the Dixie Fire, ignited when a tree fell onto
electrical lines.61 Instances mentioned above, including the Maui
and Texas fires, have also been linked to downed utility lines. Title
II strengthens existing expedited authorities with respect to rights of-
ways to allow the clearing of hazard trees within 150 feet of utility
lines instead of just 10 feet. This bill also requires automatic
approval of vegetation management plans submitted by electric
utility companies after a certain period and creates a new categorical
exclusion to expedite activities under a vegetation management,
facility inspection, and operation and maintenance plan.
These policies will help utilities address hazardous fuels in rightsof-
ways to significantly reduce the threat of a catastrophic wildfire
to nearby communities.”
https://www.congress.gov/118/crpt/hrpt674/CRPT-118hrpt674.pdf at 29.
Executive Office of the President- Office of Management and Budget issued a STATEMENT OF ADMINISTRATION POLICY on 23rd that “The administration appreciates that several provisions of H.R. 8790 align with recommendations released last year from the wildland fire mitigation and management commission… H.R. 8790, however, also contains a number of provisions that would undermine basic protections for communities, lands, waters, and wildlife; reduce opportunities for public input; and heighten the likelihood for conflict, litigation, and delay on needed forest restoration and resilience work. The administration therefore strongly opposes this bill.”
Thanks for finding this. The rumor mill says that the Admin position is not the FS’s natural position.
Everytime I say.. “OK what exactly do you get out of a CE that is different from an EA and can we build that into requirements?” Folks on the “undermine basic protections” side won’t engage. It would be an interesting discussion. So what is really wrong with what provisions?
With respect to section 121(a),
To obtain a preliminary injunction, a plaintiff must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
The 9th Circuit at one time (and perhaps it still does this) would weigh all four factors, and if factors 2-4 strongly favored an injunction, a district court might issue one even if the likelihood of success on the merits was a close question. Section 121(a) would prevent courts from using that sort of overall balancing test in cases involving covered agency actions.
In theory this would save judicial time since the judge would only need to look at one factor. But if the merits question is a difficult one, this language would force a judge to spend more time analyzing it. I would guess, from a judicial resources standpoint, this language would be a wash. Indeed, in circuits outside the 9th, it might have little effect since I believe the other circuits used the overall balancing approach less (if at all).
With respect to section 121(b), language like this has appeared in various bills since (I think) the 1990s. I think it stems from proposed logging projects that would have adversely affected spotted owl habitat (in the short term) but (the agency argued) protect owl habitat from future fires (in the long term). Courts were not generally sympathetic to this argument, considering the long-term argument to be too speculative. Section 121(b) would force judges to take the long-term argument more seriously, although I agree that the new language would not itself dictate a particular outcome.
(I’m being deliberately vague using the the term “the agency” – I don’t remember if this issue first arose with FS, BLM, or both. It’s also possible that the owl originally at issue was the CASPO – so take all of this with salt!)