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Common Ground Elusive as Manchin Permitting Bill Awaits Action

Oct. 20, 2022, 9:30 AM

Democrats and Republicans are far apart on overhauling federal permitting, leaving little common ground if and when lawmakers take another stab at moving Sen. Joe Manchin’s (D-W.Va.) stalled bill, observers say.

But that disparity may not matter if the bill hitches a ride on a must-pass vehicle such as the fiscal 2023 National Defense Authorization Act or a year-end omnibus spending bill.

Senate leaders promised Manchin to bring up an overhaul to the nation’s permitting laws in exchange for his support for the Inflation Reduction Act climate and tax bill (Public Law 117-169). But strong opposition emerged to Manchin’s measure, continuing even after lawmakers scrapped language to limit state and tribal authority under the Clean Water Act.

The only remaining pieces of the Manchin bill with broad support are standard good-government measures, like an expanded role for the Federal Permitting Improvement Steering Council, said Byron Brown, the EPA’s former associate deputy general counsel under the George W. Bush and Obama administrations. He is now senior counsel in the D.C. office of Crowell & Moring LLP’s government affairs and environment and natural resources groups.

The council acts as a go-between to help agencies move through the permitting process more efficiently.

Forcing Disclosure

Under Manchin’s bill, small energy projects, critical mineral development, and other programs would be eligible to apply for FPISC’s services, which are voluntary. Under the current rules, FPISC can only work on large projects that carry a price tag of at least $200 million and involve multiple agencies.

Strong majorities of Democratic and Republican lawmakers support FPISC because it “forces disclosure and creates more transparency,” moving projects through the permitting process faster, said Emily Mallen, a partner at Sidley Austin LLP.

FPISC also has significantly more muscle now, thanks to a 3,400% increase in its budget under the recent climate-and-tax bill.

Another part of Manchin’s bill that could draw broad support is a requirement for the White House to identify at least 25 high-priority energy infrastructure projects for prioritized permitting treatment, said Lisa McDonald, a senior associate at consulting firm Abt Associates.

On the other hand, “would the two parties agree on what the projects should be? Probably not,” McDonald said.

Enviros’ Hard Line

Manchin said before the October recess that permitting legislation negotiators have to find “that sweet spot” to satisfy enough members of both parties. He agreed it was important to talk to House lawmakers as well for their input.

Biden on Wednesday also pressed for a permitting overhaul.

“Right now, the process of getting clean energy projects approved is too cumbersome and too time consuming,” Biden said. “So, I’m asking the Congress: Pass a permitting bill to speed up the approval of all kinds of energy production from wind, to solar, to clean hydrogen. Because we need to get this moving now, quickly—now.”

For now, most of the other pieces of Manchin’s proposal are non-starters with environmentalists and their allies in Congress.

Basav Sen, climate justice project director at the Institute for Policy Studies, agreed that faster permit approvals would help the Biden administration deploy clean energy. But Sen said the solution to the problem is more funding and staffing for permitting agencies like the Army Corps of Engineers and Department of Interior.

The climate-and-tax bill goes some way toward that goal, delivering about $1 billion to a range of agencies—including the Environmental Protection Agency and departments of Interior, Energy, Agriculture, and Transportation—to hire more permitting staff, develop programmatic environmental documents, and buy new equipment for environmental analysis.

That funding helps, but what’s needed now is more public involvement in the permitting process to avoid delay due to opposition and build community buy-in, said Stephen Schima, senior legislative counsel at Earthjustice.

Many of those provisions are included in the Environmental Justice for All Act (H.R. 2021), introduced by Rep. Raul Grijalva (D-Ariz.) last March. That bill is awaiting House floor action but faces a much more difficult path in the Senate, where a similar measure (S. 872) hasn’t attracted any GOP cosponsors.

Midterms a Pivot Point

Manchin’s bill could still pass in a lame-duck session if attached to must-pass legislation. But the November midterms will dictate both party’s appetite for permitting changes.

If Republicans win back both chambers, a permitting overhaul before the 118th Congress is highly unlikely. But when the new Congress is seated, Republicans will want to pursue more aggressive changes to the process, led by Sens. Shelley Moore Capito (R-W.Va.) and John Barrasso (R-Wyo.), along with Reps. Cathy McMorris Rodgers (R-Wash.) and Bruce Westerman (R-Ark.).

Capito’s permitting bill (S. 4815), introduced last month, goes much further than Manchin’s, incorporating ideas such as a rollback of the Biden administration’s recent changes to the National Environmental Policy Act rules and a prohibition on the use of the social cost of carbon in cases where it raises gasoline prices.

But it already has 46 co-sponsors—all Republicans—and is nearly identical to an amendment Capito filed during the Inflation Reduction Act vote, which all 50 Republicans supported.

“I think the two sides are far apart,” McDonald said. “It doesn’t seem like they have a lot of common ground.”

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Kellie Lunney in Washington at klunney@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com