The Senate Permitting Reform Bill introduces a provision aimed at addressing disparate treatment in federal permitting processes. Section 1402, titled “Ensuring Fairness for Specific Types of Covered Projects”, allows applicants to challenge delays or denials by claiming bias against their project type. This provision is part of a broader effort to address perceived biases in permitting decisions, particularly for energy and mining projects.
This provision applies to a broad range of projects, including renewable and fossil fuel energy initiatives, as well as mining operations. If an applicant believes their project has been unfairly delayed or denied, they can file a disparate treatment claim against the agency. The bill specifically targets projects like wind power, oil and gas production, and mining, aiming to prevent discretionary decisions that might hinder these sectors.
A Legal Framework Borrowing from Discrimination Law
The bill draws on principles from employment discrimination law, enabling applicants to present evidence of a pattern of improper denials or delays for their specific project type. This evidence can include empirical data and statements from government officials indicating bias. Applicants can also submit evidence of government bias, such as statements or actions demonstrating a prejudiced permitting regime against their project type.
Once a claim is filed, the agency must provide permitting data from the past five years for that type of project. The court then evaluates whether disparate treatment occurred based on the applicant’s evidence, the administrative record, and the agency’s data. The court’s decision is limited to these sources, which can make it challenging for agencies to defend their actions.
Potential Consequences and Concerns
The provision’s focus on historical data rather than comparative treatment between project types is seen as a departure from traditional discrimination law principles.
The provision’s burden of proof also raises concerns. Applicants must demonstrate compliance with federal law and their ability to complete the project. However, agencies may struggle to justify increased delays or denials based on proper denials or reasonable delays, as the court’s decision relies primarily on empirical data. This imbalance favors applicants, making it difficult for agencies to defend their decisions effectively.
In contrast, Section 1403 of the bill introduces a one-year timeframe for approvals not covered by NEPA, providing a more balanced approach to permitting reform. This section ensures that projects outside NEPA’s scope receive similar timeframes and judicial review opportunities, addressing a critical gap in the permitting process.
Challenges in Defining Disparate Treatment
The bill‘s definition of disparate treatment differs from its use in discrimination law. Instead of comparing treatment between project types, it focuses on increases in delays or denials compared to historical data. This approach could limit executive discretion in permitting decisions, potentially weakening regulatory standards over time. The provision’s structure creates a one-way ratchet, allowing for easier permitting but not for stricter regulations, which could undermine environmental and safety standards.
Burden of Proof and Applicant Requirements
Applicants must meet substantial burdens to utilize this provision. They must demonstrate that their project satisfies all applicable federal laws and show no possibility of cancellation due to violations. Additionally, applicants must prove their technical and financial ability to construct the project and complete it or repay any damages. These requirements are designed to ensure that only viable and compliant projects can benefit from the provision.
Again, I think this provision has real issues – though it is probably more easily fixed than Section 1401. Disparate treatment is defined as a “substantial increase” compared to “5 most recent calendar years of empirical data” in “unreasonably delayed” approvals or “improperly denied” projects, over a 180 to 280 day period (the longer period is for EA or EIS required projects), and is the “result of an intentional course of action undertaken by the Federal Government to create such a pattern”. This narrow focus on historical data and intentional government action limits the provision’s effectiveness and fairness.