Manchin’s Permitting Reform Stalls
By Christian Roselund
On 27 September, 2022, only six days after U.S. Senator Joe Manchin released the text of his permitting reform legislation, he removed it from a bill funding the U.S. government. This rapid setback underscores the sharp political divisions around energy permitting issues and the challenges that permitting reform faces
in Congress.
Manchin’s legislation would set deadlines for permitting projects under the National Environmental Policy Act (NEPA), mandate the creation of a list of federal priority projects, and give the federal government a role in prioritizing and approving transmission lines. Additionally, it would give legislative approval to the Mountain Valley natural gas pipeline and over-ride court decisions blocking the project.
It is unclear what the path forward is for this legislation, with both progressives in the Democratic Party and Republicans expressing opposition to different portions of the bill. If these concerns can be overcome, it is possible that Manchin will insert the permitting reform language into a portion of the National Defense Authorization Act (NDAA), or other legislation. It is unlikely that Manchin will introduce it as a standalone bill.
The Details of Permitting Reform
Manchin’s permitting reform language combined the aims of putting firm timelines on federal permitting processes with allowing and in some cases requiring the federal government to prioritize energy infrastructure projects. However, this was done in a way that explicitly prioritized fossil
fuel projects.
The legislative language would change processes for the federal approval of energy projects in several ways. First, it sets a 2-year timeline for NEPA reviews of major energy projects that include a full environmental assessment, and a one-year timeline for projects that only require an environmental assessment. Following this process, the federal government would have 180 days for agencies to provide all other permits. The legislation would additionally designate a lead agency to coordinate reviews and set a 150-day statute of limitations for court challenges against
these reviews.
Second, it would require the president to identify and maintain a list of 25 strategic energy projects for priority federal review. These would include projects that reduce energy prices, lower greenhouse gas emissions, and meet other federal priorities. However, this would include a minimum number of fossil fuel, carbon capture, and hydrogen projects – in addition to storage and transmission projects.
Finally, it would give the federal government increased permitting authority for transmission lines. This would include requiring FERC to order construction of transmission projects found to be in the national interest, including through eminent domain, and to assign cost allocation.
Clean Energy Industries vs. Environmental Justice Advocates
Within days of its publication, the American Clean Power Association (ACP) and the Solar Energy Industries Association (SEIA) – the two largest trade groups representing the wind, solar, and energy storage industries in the United States – came out in favor of Manchin’s permitting reform legislation. ACP lamented that the current permitting system is “cumbersome and mired in delays.” It further argued that such permitting reform is needed to accomplish the administration’s clean energy goals and complete the work that the Inflation Reduction Act started.
SEIA’s statement focused on the transmission portions of the act, noting that the difficulty in building transmission is a “fundamental challenge for quickly deploying the clean energy necessary to reduce carbon emissions.”
This was in sharp contrast to environmental justice organizations, which had opposed the legislation before the text was even released. Following its release, Earthjustice called it “an attempt to sacrifice and silence frontline communities and rush through fossil fuels projects while failing to address the root causes of delays for clean energy transmission.”
No Easy Path Forward
Progressives in the Democratic Party tended to mirror the position of environmental justice organizations. In addition to the opposition by more than 70 members of the House of Representatives (see the 26 September U.S. Energy Transition Report), U.S. Senators Bernie Sanders and Tim Kaine emerged as leading opponents to the bill in the Senate. Meanwhile, Republicans expressed concern about the expanded powers of the federal government to approve and allocate costs for transmission projects.
E&E News has noted that there is the possibility for new permitting reform language to be inserted into a bill funding the U.S. military or another omnibus government spending bill. But while lawmakers from both parties have signaled that they would be willing to work on the legislation, it is not clear that any cross-party consensus will be reached, or that a viable bill will be introduced before the mid-term elections.
News/Analysis: Manchin’s permitting overhaul: Not dead yet (E&E News)
Source: Energy Independence and Security Act of 2022 (U.S. Senate Energy and Natural Resources Committee)
