; (2) may not presume that any harms identified pursuant to paragraph (1) are reparable; (3) may condition such an order or injunction upon the payment by the party seeking such order or injunction of a bond equal to an amount not to exceed $5,000,000 or a lesser, but material, percentage of the reasonably anticipated costs of delay of the project for which the permit or permits were applied; and (4) may not issue a temporary restraining order unless the party seeking the order shows that it was not reasonably possible to seek a preliminary injunction at an earlier date. . (b) Permanent injunctions Section 706 of title 5, United States Code, as amended by this Act, is further amended by adding at the end the following: (d) In any action seeking review of a determination to issue a permit, if a party moves for a restraining order or injunction pertaining to the permit or the permitted activity, the court, in addition to considering any other applicable equitable factors, shall issue such order only if it is determined to be in the public interest, and shall, in making such determination, consider— (1) the environmental benefits of the permitted activity; and (2) the costs, including detrimental effects on the environment, of any delay in undertaking the permitted activity. (e) The court may preclude recovery by a permit applicant on a bond required under section 705(b)(3) if the court determines the action was substantially justified. .