H.R. 8308 — CERTAIN Act

This section prohibits a federal agency from revoking, rescinding, withdrawing, terminating, suspending, amending, altering, or otherwise interfering with an authorization—except as required by court order, to prevent specific, immediate, substantial, and proximate harm to life, property, or national security not anticipated in the underlying environmental review; at the holder's request; or, after at least seven days' notice, for the holder's material breach of terms, violation of law, or obtaining the authorization through fraud, misrepresentation, or concealment. Such agency actions must be supported by clear and convincing evidence and limited in duration and scope to the specific issue addressed, preceded by detailed written notice to the holder identifying the authority and evidence relied upon. The section further provides for judicial review under the Administrative Procedure Act in the relevant U.S. court of appeals or the U.S. Court of Appeals for the D.C. Circuit (prohibiting agency petitions for vacatur or remand without holder consent) and includes a savings clause preserving agencies' existing explicit authorities.

This section establishes timelines and processes for federal agencies to review applications for authorizations (i.e., permits, licenses, or approvals). Specifically, it requires agencies to (1) publicly document receipt online within 14 days (30 days for applications pending on enactment), immediately notify applicants in writing, and determine completeness within 30 days (45 days for pending applications), requesting only necessary additional information with clear timelines if incomplete; (2) deem applications complete after 60 days without agency notification following an information request (unless a written attestation of applicant deficiency), after an additional 30 days without a second attestation, or after another 30 days without a bad faith determination (in which case the application is denied, subject to judicial review), while prohibiting revocation of completeness determinations and limiting requests for new information; and (3) within 30 days of a completeness determination, notify applicants of National Environmental Policy Act (NEPA) applicability—including issuance of a notice of intent within 30 days if an environmental assessment or impact statement is required—or defer via a coordination plan if more information is needed.

This section directs the Council on Environmental Quality (CEQ), in consultation with relevant federal agencies, to (1) issue guidance within 180 days of enactment on implementing this Act's provisions and (2) take actions within its authority to facilitate timely environmental reviews under the National Environmental Policy Act (NEPA) for federal authorizations (i.e., permits and licenses for infrastructure and energy projects). It further requires the CEQ Chair, upon written request by an authorization applicant, to mediate environmental review disputes (in consultation with agency officers as applicable) and, if unresolved after 30 days, to facilitate resolution and—within the Chair's discretion—issue process-specific directions (limited to interagency coordination, scheduling, and management) by the end of the 60-day period beginning on the dispute submission date, without predetermining review outcomes. CEQ actions under this dispute process are not final agency actions subject to judicial review under the Administrative Procedure Act (chapter 5, title 5, U.S. Code). Finally, this section requires CEQ to submit reports to the Senate Committees on Energy and Natural Resources and Environment and Public Works and the House Committees on Energy and Commerce and Natural Resources, one year after enactment and biennially thereafter, detailing disputes received, resolution times, unresolved disputes and reasons, and recommendations to further reduce review delays.

This section establishes expedited judicial review under the Administrative Procedure Act (APA, 5 U.S.C. ch. 7) for agency actions or inactions on authorizations under section 2(a), including revocations and failures to meet deadlines, timelines, or milestones under this Act or other laws, treating such actions as final agency actions. It specifies venue in the U.S. Court of Appeals for the circuit where the project is or will be located or for the D.C. Circuit; creates a rebuttable presumption of unreasonable delay under APA section 706(1) for missed deadlines; requires courts to issue decisions as expeditiously as practicable and within 90 days of filing; and directs courts finding unreasonable delay to order corrective actions with specified completion deadlines. This section further provides APA judicial review for denials of authorization applications or agency determinations of applicant bad faith under section 3(b)(1)(C), treating them (or, for Federal Energy Regulatory Commission orders under the Federal Power Act or Natural Gas Act, the final rehearing order) as final agency actions, with the same venue options and 90-day court decision requirement. A savings clause preserves applicants' and agencies' ability to resolve denials informally or administratively.

This section establishes a coordinated process for environmental reviews of projects requiring complex authorizations. It (1) designates a lead agency—either the sole agency with jurisdiction or, for multiple agencies, one selected within 30 days based on NEPA criteria—which is responsible for facilitating timely review completion, coordination among participating agencies, and response to comments; (2) requires the lead agency to identify and invite other Federal and non-Federal agencies (with a Tribal government exception to response deadlines) as participating agencies within 60 days of application completeness, with non-responding Federal agencies subject to applicant request under section 4(b); (3) directs all agencies to conduct concurrent reviews under applicable law, including NEPA; and (4) requires issuance of final agency actions for all relevant authorizations in a single document, which may include a performance schedule of up to one year for remaining reviews, with actions remaining legally independent and severable for judicial review.

This section requires the head of each agency listed in the FAST Act (i.e., major federal permitting agencies such as the Departments of the Interior, Agriculture, Energy, Transportation, and others) to submit to the Office of Personnel Management (OPM) Director and specified congressional committees, not later than 180 days after enactment and every five years thereafter, a report assessing (1) the agency's capacity, by state and region, to engage affected communities on project authorizations including environmental reviews; and (2) by field office, whether it has sufficient employees to process such authorizations timely and comply with NEPA sections 107(g) and 112(a)(4) (i.e., provisions on deadlines and certification). If a report identifies insufficient personnel, OPM must, not later than 90 days after receipt, publish, develop, and initiate a plan to increase the agency's capacity; the agency head may then exercise direct hire authority—bypassing standard competitive service procedures under 5 U.S.C. §§3304 and 3309-3318, subject to merit principles and public notice requirements—for up to five years or until sufficiency is achieved. The section authorizes appropriations of such sums as necessary to carry out these provisions.

This section defines terms used in the Act. Those terms include (1) "authorization," meaning any federal right-of-way, license, permit, approval, or other administrative decision (including supporting actions for environmental compliance) required for a project, excluding decisions under the Atomic Energy Act; (2) "complex authorization," including authorizations requiring an environmental impact statement, Endangered Species Act consultation, National Historic Preservation Act consultation, new right-of-way, Clean Water Act section 404 permit or section 401 certification, or Clean Air Act preconstruction permit; (3) "environmental review," meaning the National Environmental Policy Act process and any other federal authorization processes for a project; (4) "non-Federal agency," meaning a state, tribal, or local government; (5) "participating agency," meaning a federal agency agreeing to participate under section 6(b); and (6) "routine authorization," meaning any authorization that is not complex (e.g., preconstruction surveys or temporary use permits).