CLEAR Act of 2025
- Sponsor
- Sen. Cotton, Tom [R-AR]
- Committees
- Judiciary Committee (primary)
- Last action
- Dec 2, 2025
Bottom line
The CLEAR Act seeks to expedite energy project development by drastically reducing the avenues for legal challenges and streamlining judicial review processes, prioritizing project completion over protracted litigation.
What it actually does
This bill, known as the CLEAR Act of 2025, aims to significantly limit legal challenges to energy projects by establishing a 'single action rule' for litigation and imposing stricter standards and deadlines for judicial review. It broadly defines 'energy project' to include generation, transmission, fossil fuels, and critical minerals, and restricts who can assert the preclusion of repeat litigation.
Proponents argue
Proponents argue this bill will accelerate critical energy infrastructure development, reduce project costs, and enhance energy security by preventing repetitive and protracted litigation that often delays or halts projects. They believe it will create regulatory certainty and predictability for developers, fostering economic growth and job creation.
Opponents contend
Opponents would likely contend that this bill severely curtails environmental protection, public participation, and due process rights by limiting judicial review. They might argue it creates a fast-track for energy projects at the expense of local communities and environmental safeguards, potentially leading to poorly vetted projects with significant negative impacts.
The bill is short but contains dense legal concepts, requiring careful reading to grasp its full implications for judicial review and energy project development.
Section 1
Short Title
This section establishes the official short title of the Act as the 'Curtailing Litigation Excess and Abuse Reform Act of 2025' or the 'CLEAR Act of 2025.' This is how the bill would be commonly referred to if enacted into law.
Supporters argue
Supporters would argue that a clear and concise short title helps in easily identifying and referencing the legislation.
Critics contend
No specific opposition is typically raised against short titles, as they are primarily for identification.
Tradeoffs
None apparent for a short title.
Section 2(a)
Definitions for Energy Project Litigation
This section defines key terms crucial to the bill's scope. 'Authorization' includes any agency permit or decision for an energy project. 'Completion' refers to when an energy project begins commercial operation or production. 'Energy project' broadly covers facilities for electric energy, fossil fuels, or critical minerals. 'Legal action' means any court claim challenging an authorization, excluding eminent domain compensation claims.
Section 2(b)(1)
Common Nucleus of Operative Fact Rule
This provision mandates that for the purposes of this Act and the legal principle of *res judicata* (which prevents relitigation of decided issues), an entire energy project and all its associated authorizations (permits, licenses, etc.) shall be considered a 'common nucleus of operative fact.' This means all aspects of a single energy project are legally linked, even if they involve different permits or decisions.
Section 2(b)(2)
Single Action Rule for Energy Projects
This provision establishes a 'single action rule,' stating that once any legal action or claim involving *any aspect* of an energy project has been finally adjudicated by a court, no subsequent legal action concerning *any other aspect* of the same project may be brought. This applies regardless of the parties involved, the relief sought, or whether a different authorization is challenged. A 'final adjudication' means a judgment on the merits not subject to appeal.
Section 2(d)
Exceptions to Preclusion
This section carves out two specific exceptions to the preclusion rules. It clarifies that judicial review is still permitted for legal actions alleging operational violations of Federal or State law *after* the energy project is completed, and for enforcement actions brought by the United States or a State in its sovereign capacity to ensure compliance with applicable law.
Section 3(a)
Abused Discretion Standard of Review
This section modifies the standard of judicial review for legal actions challenging agency compliance with procedural requirements for authorizations. Instead of the standard set by the Administrative Procedure Act, a court may only find an agency non-compliant if it determines the agency 'abused its substantial discretion' in complying with procedural requirements.
Section 3(b)
Deference to Agency Judgment
This provision instructs courts reviewing legal actions to 'defer to the applicable Federal agency' and explicitly states that courts 'may not substitute its judgment for the judgment of the applicable Federal agency regarding factual determinations or the scope of review for issuance of the authorization.'
Section 3(c)
Limitations on Remand and Continued Effect of Authorization
If a court finds an agency failed to comply with procedural requirements, it may only remand the authorization with specific instructions to correct errors and a strict deadline (180 days after the order, or 180 days after enactment for prior orders). Crucially, the authorization *remains in effect* while the agency corrects the errors, preventing project halts during the remand period.
Section 3(d)
Strict Limitations on Claims for Judicial Review
This section imposes strict new requirements for bringing legal actions. A lawsuit must be filed within 150 days of the final agency action (unless a shorter timeline exists). Furthermore, for authorizations with a public comment period, the lawsuit can only be filed by a party who submitted a 'substantive and unique comment' during that period, sufficiently detailed to notify the agency of the issue, showing direct harm, and the lawsuit must concern the *same subject matter* raised in that comment.
The broad definitions of 'energy project' and 'legal action' are critical to the bill's expansive scope. 'Energy project' includes generation, transmission, fossil fuels, and critical minerals, while 'legal action' covers almost any judicial challenge to an authorization, excluding only eminent domain compensation.
Section 2(a)(3), (4)
Why it matters:While definitions are standard legislative practice, the breadth of these particular definitions is highly consequential and could be seen as strategically placed to ensure wide applicability of the bill's restrictions.
Case for: Proponents would argue that broad definitions are necessary to ensure comprehensive coverage and prevent circumvention of the bill's intent to streamline all critical energy infrastructure projects.
Case against: Opponents would argue that such broad definitions could inadvertently sweep in projects or legal challenges that do not warrant such severe restrictions, potentially leading to unintended consequences for diverse energy sectors and public oversight.
Estimated impact: These definitions dictate the entire universe of projects and legal challenges subject to the bill's preclusion and review standards, affecting potentially thousands of projects nationwide.
This provision establishes that an entire energy project and all its associated authorizations are considered a 'common nucleus of operative fact' for *res judicata* purposes.
Section 2(b)(1)
Why it matters:This is a sophisticated legal maneuver. While technically placed in the 'Preclusion' section, its specific legal effect on *res judicata* is complex and could be seen as a way to achieve broad preclusion without explicitly listing every type of challenge.
Case for: Supporters would argue this prevents serial litigation, forcing all challenges to be brought at once, thus providing project developers with certainty and finality.
Case against: Critics would argue this is an aggressive expansion of *res judicata* that could unfairly penalize litigants who may not have all information or grounds for a challenge early in a project's long development cycle.
Estimated impact: This provision could drastically reduce the number of separate lawsuits filed against large energy projects by forcing consolidation, potentially saving developers significant legal costs and time.
If a court remands an authorization to a federal agency for procedural errors, the authorization *shall remain in effect* while the agency corrects those errors.
Section 3(c)(2)
Why it matters:This provision fundamentally changes the power of a judicial remand. By allowing a project to continue even with a procedurally flawed authorization, it significantly weakens the immediate impact of a court finding against an agency. This could be seen as a deliberate attempt to minimize disruptions to projects.
Case for: Proponents would argue this prevents project delays due to minor procedural fixes, ensuring that energy infrastructure development can continue uninterrupted while agencies address court-identified issues.
Case against: Opponents would contend that allowing a flawed authorization to remain in effect undermines the purpose of judicial review, potentially allowing projects to cause harm or incur costs based on an invalid permit before corrections are made.
Estimated impact: This provision could save project developers significant costs associated with project halts during remand periods, potentially billions of dollars for large projects, but shifts the risk of proceeding with a flawed permit to the public and environment.
To bring a legal action challenging an authorization with a public comment period, a party must have submitted a 'substantive and unique comment' during that period, sufficiently detailed to put the agency on notice of the issue, showing direct harm, and the lawsuit must concern the *same subject matter* raised in that comment.
Section 3(d)(2)
Why it matters:These are highly specific and stringent requirements that significantly raise the bar for public participation to translate into judicial review. Such detailed legal hurdles are often placed in technical sections to avoid drawing immediate public attention to their restrictive nature.
Case for: Proponents argue this ensures that judicial challenges are based on issues properly raised during the administrative process, preventing 'gotcha' lawsuits and encouraging meaningful public participation at the appropriate stage.
Case against: Opponents would contend these requirements are overly burdensome, especially for grassroots organizations or individuals who may lack the resources or legal expertise to submit 'substantive and unique' comments that anticipate all future legal arguments, effectively shutting out many legitimate public concerns from judicial review.
Estimated impact: This provision could drastically reduce the number of parties eligible to bring lawsuits and the scope of issues that courts can consider, thereby significantly limiting judicial oversight of agency decisions for energy projects.