Sen. Mitch McConnell has introduced a bill to open up offshore oil and gas drilling and to expedite the permitting and judicial review process. While this sounds great, S. 953 has serious flaws with respect to its judicial review provisions.
First. the bill requires that,
Expedition in Hearing and Determining the Action- The court shall endeavor to hear and determine any covered civil action as expeditiously as possible.
Given that federal court cases can drag on for years and that the federal courts are populated with anti-drilling Democrats and clueless Republican judges, what does this mean? Is 18 months expeditious? Judicial review should be confined to a finite period like 60 days.
Next the bill provides that,
(e) Standard of Review- In any judicial review of a covered civil action–
(1) administrative findings and conclusions relating to the challenged Federal action or decision shall be presumed to be correct; and
(2) the presumption under paragraph (1) may be rebutted only by the preponderance of the evidence contained in the administrative record.
“Preponderance of the evidence” is a vague legal standard. This section should be changed to say that a a permit challenge can only succeed if some sort of fraud or gross error in the administrative record is proven beyond a reasonable doubt.
For years, energy and environmental bills have been written by the enviros and for the enviros to block energy production. Let’s get a bill written that will produce a meaningful amount of energy in a reasonably quick and safe manner.