Why Democrats Are Fighting Over How to Permit Energy Projects

Senator Joe Manchin, a key Democratic voice in the evenly divided US Senate, has urged his peers to streamline and expedite the process of obtaining federal permits for energy projects, including in his home state of West Virginia.

Now a patchwork of federal agencies are reviewing fossil fuel and renewable energy projects for potential environmental damage. ManchinChair of the Energy and Natural Resources Committee, and many Republicans want to speed up a system they say has delayed projects by a decade or more in some cases because of environmental protests and litigation.

Progressive representatives in the House of Representatives, Republicans in both houses and environmental groups have opposed Manchin’s efforts, particularly his offer to attach it to spending legislation needed to keep the government running after September 30. If this ongoing resolution is not passed by the deadline, government agencies could be crippled ahead of November’s midterm elections.

1. What is Manchin’s case?

Manchin said his “key driving force” in revising the permits is to help the US remain a superpower. “You can’t remain a superpower in the world if you don’t have energy independence,” he said Sept. 20.

While gasoline prices have been falling since early summer after peaking in excess of $5 a gallon in many places, fears remain that energy costs will rise in the winter and other commodity prices will continue to rise.

At home, Manchin is focused on completing a delayed and overpriced 303-mile natural gas pipeline that runs through his state as well as Virginia and possibly part of North Carolina. Supporters of the Mountain Valley Pipeline say it would create thousands of jobs across the region, bring down energy prices for Americans and help European allies grappled with an energy crisis stemming from Russia’s war in Ukraine.

Read more: Manchin’s pipeline could be the last of its kind if it survives

2. What does “approve reform” mean?

Democrats and Republicans speak of “permitting reform,” but define it differently.

Republicans say the process has become too onerous for companies to successfully complete projects that could create jobs and increase domestic energy production, helping make the US energy independent.

They say proposed project reviews under key environmental laws, including the National Environmental Policy Act, the Clean Water Act and the Endangered Species Act, are mired in bureaucracy, helping environmental groups sue the government and industry over fossil fuel projects they oppose . Republicans generally want shorter deadlines for environmental reviews and, in some cases, fewer federal agencies to get involved in the process. They also advocate giving states more authority over federal energy projects in their regions.

Some Democrats are open to streamlining the permitting process, but most express concerns that streamlining the system could lead to fewer and less robust environmental assessments, which could hurt low-income communities of color already suffering from pollution. But Democrats have also expressed their openness to allowing changes that would help speed up renewable energy projects while protecting the environment.

Progressive Democrats, including the Natural Resources House Speaker Raul Grijalva (Ariz.), have proposed increasing transparency and public input into the permitting process.

3. What is the current status?

Democratic leaders who committed to Manchin this summer would vote on permissible language as part of a rolling resolution in exchange for West Virginians’ vote on tax, health and climate legislation enacted in August (Public Law 117-169). Democrats needed Manchin’s vote to pass the measure, which is a top priority for President Joe Biden, without Republican support.

Manchin on Wednesday released the text of the law and a summary of permitting provisions mandating a two-year target for National Environmental Policy Act reviews for large energy and natural resource projects and requiring all other project permits to be granted within 180 days of completion of the NEPA process.

It would also establish a 150-day statute of limitations on court challenges.

The legislation would affect the permitting of fossil fuel and renewable energy projects, including electric transmission projects. It would prioritize 25 critical energy infrastructure projects of “strategic national importance” for accelerated approval.

In addition, attempts are being made to tighten the scope of certain Section 401 Clean Water Act reviews.

Progressive House Democrats fear the changes would undermine disadvantaged communities’ ability to influence fossil fuel projects in their neighborhoods. Democrats and Republicans have complained that significant policy changes were included in the must-pass legislation.

The Manchin text also specifically calls for an accelerated permit for the Mountain Valley Pipeline, which is nearing completion. Environmental activists, some landowners and Democrats including Grijalva and Sen. Bernie Sanders (I-Vt.) against the pipeline.

Read more: Battle over energy permits puts shutdown-cautious Democrats in a bind

4. Are there competing laws?

Yes.

Sen. Shelley Moore Capito (RW.Va.) presented a draft permit supported by the GOP (p. 4815) earlier this month, which would codify executive action under former President Donald Trump that expedited approval of projects under NEPA and the Clean Water Act. It would also codify the Trump-era “Navigable Waters Protection Rule” that restricted the definition of federal waters under the broader “U.S. Waters” or WOTUS rule. Capito’s bill, supported by nearly all Senate Republicans, would also reduce the time frame for consultations under the Endangered Species Act from 90 to 60 days.

Grijalva, who has led opposition to Manchin’s permit efforts in the House of Representatives, said Capito’s bill is even worse, calling it “terrible”. Capito’s bill, said to be more aggressive than Manchin’s, also plans to give states more federal power leasing powers under certain circumstances.

Their legislation, which Manchin dubbed a “messaging law,” is based on a rejected amendment Capito proposed during the tax, health and climate bill debate this summer.

Other language in Capito’s measure would prohibit the use and adoption of the “Biden administration’s estimates of the “social costs of greenhouse gases” and any other estimates that could increase gasoline prices.”

Capito’s bill would also specifically expedite the approval of the Mountain Valley pipeline within 21 days of the law’s entry into force.

Energy and Natural Resources officials said during Wednesday’s briefing on Manchin’s draft law that the two pieces of legislation are very similar.

5. Can a dead end be broken?

A small group of senators were involved in the approval negotiations, including Manchin, the majority leader Chuck Schumer (DN.Y.) and Chairman of Environment and Public Works Tom Karper (D-Del.).

Locate the text of the Manchin Permit Provisions to be included in the rolling resolution, which is expected to run through December 16. It has yet to be determined which chamber will absorb the CR first, although Manchin indicated on Sept. 20 that the Senate would do it next week.

Both chambers open for the holiday of Rosh Hashanah on September 26, and the Senate returns on the afternoon of September 27.

If the CR omits authorization language, or if lawmakers remove it because it jeopardizes passage of the stopgap, the provisions could find a place in a year-end omnibus spending bill or the National Defense Authorization Act of 2023.

“This is bipartisan; it can’t be done without the Republicans,” Manchin said of the permitting legislation. He predicted that once Republicans see the text of his bill, they will vote in favor of it. Republicans “ruled the tables” with control of Congress and the White House in 2016, and they “did nothing” to streamline approval, Manchin added.