§4370m–6 — Title 42 The Public Health and Welfare | U.S. Code

Summary

Claims asking a court to review a federal agency’s approval for a covered project must be filed within 2 years after the agency’s final action is published in the Federal Register, unless another law sets a shorter deadline. For actions tied to an environmental review under NEPA, the person suing must have submitted a comment during that review, and their comment must have been detailed enough to tell the lead agency what the issue was, or the agency must have denied a fair chance to comment. Agencies must consider new information that meets NEPA rules after a comment period closes. If a supplemental environmental document is required, that document counts as a separate final action and starts a new 2-year filing period. Nothing here creates a new right to sue or stops claims that someone broke the terms of an approval. When a court considers a temporary restraining order or preliminary injunction against an agency or project sponsor, it must weigh harms to public health, safety, the environment, and possible major job losses, and it must not assume those harms can be fixed. Except for the 2-year rule above, this law does not change what final agency actions can be reviewed, does not override other statutes, does not make approval more likely, and does not stop public comment or the authorities of federal, state, local agencies, tribes, metropolitan planning organizations, or project sponsors.

Title 42, §4370m–6

The Public Health and Welfare — Source: USLM XML via OLRC

(a)(1)Notwithstanding 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)(A)The head of a lead agency or participating agency shall consider new information received after the close of a comment period if the information satisfies the requirements under regulations implementing NEPA.

(B)If Federal law requires the preparation of a supplemental environmental impact statement or other supplemental environmental document, the preparation of such document shall be considered a separate final agency action and the deadline for filing a claim for judicial review of the agency action shall be 2 years after the date on which a notice announcing the final agency action is published in the Federal Register, unless a shorter time is specified in the Federal law under which judicial review is allowed.

(3)Nothing in this subsection creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of an authorization.

(b)In 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)Except as provided in subsection (a), nothing in this subchapter affects the reviewability of any final Federal agency action in a court of competent jurisdiction.

(d)Nothing 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)Nothing 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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

NEPA, referred to in subsec. (a)(1)(B), (2)(A), means the National Environmental Policy Act of 1969, Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to this chapter. See section 4370m(16) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 4321 of this title and Tables. Codification Section was enacted as part of the Fixing America’s Surface Transportation Act, also known as the FAST Act, and not as part of the National Environmental Policy Act of 1969 which comprises this chapter.

Amendments

2021—Subsec. (a)(1)(A). Pub. L. 117–58, § 70801(e)(1)(A), substituted “the claim” for “the action” and “of notice of final agency action on the authorization” for “of the final record of decision or approval or denial of a permit”. Subsec. (a)(1)(B)(i). Pub. L. 117–58, § 70801(e)(1)(B), substituted “the claim” for “the action”. Subsec. (e). Pub. L. 117–58, § 70801(e)(2), substituted “this subchapter” for “this section” in introductory provisions.

§4370m–6 Litigation, judicial review, and savings provision