[ Details on the permitting reform demanded by Senator Manchin
remain scant. Many fear it could prove a giveaway to fossil fuel
companies. The majority leader seems determined to see it through,
despite ever more Democrats expressing their skepticism.]
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WHY RESOLVING DEMOCRATS’ INTERNAL WAR ON CLIMATE POLICY WILL BE
HARD  
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Kate Aronoff
September 15, 2022
The New Republic
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_ Details on the permitting reform demanded by Senator Manchin remain
scant. Many fear it could prove a giveaway to fossil fuel companies.
The majority leader seems determined to see it through, despite ever
more Democrats expressing their skepticism. _

Photo credit: Ted Rall for WhoWhatWhy,

 

Last month, Senator Chuck Schumer struck a deal
[[link removed]].
Now the majority leader seems determined to see it through, despite
ever more Democrats expressing their skepticism.

The broad outlines of the bargain reached principally between Schumer,
as Senate majority leader, and West Virginia Senator Joe Manchin was
this: In exchange for Manchin’s vote on the Inflation Reduction Act
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which contained numerous Democratic climate priorities, Schumer would
put something called permitting reform into the continuing resolution,
or C.R., that needs to pass to keep funding the federal government
after the end of the month. In essence, permitting reform means
streamlining the process by which new energy infrastructure—clean or
otherwise—gets approved at the federal level.

“The bottom line is very simple,” Schumer told
[[link removed]] reporters
on Tuesday. “The permitting agreement is part of the IRA agreement.
I’m going to add it to the C.R., and it will pass.” The majority
leader’s office declined to provide another on-the-record statement
for this piece.

What exactly Manchin and Schumer propose to pass under the heading of
“permitting reform” remains a bit of a mystery. The most recent
available text is still a draft leaked way back in July, emblazoned
with a watermark from the American Petroleum Institute. A one-pager
[[link removed]] along
similar lines has been circulating among lawmakers and lobbyists for
several weeks. These drafts suggest permitting reform may consist of
developing a list of “priority” projects—including projects for
fossil fuels, carbon capture and storage, critical minerals, nuclear,
hydrogen, electric transmission, renewables. The drafts also include
limiting timelines for environmental reviews under the National
Environmental Policy Act, or NEPA; limiting court challenges to energy
infrastructure; and expanding the Federal Energy Regulatory
Commission’s ability to approve interstate transmission lines,
overriding state and local blockages. The text also includes a green
light for the Mountain Valley Pipeline, a pet project of Manchin’s
that he hopes to exclude from any sort of judicial review, overriding
the courts that have already blocked it
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Climate activists, as well as progressives in the House and Senate,
are now in open revolt. Seventy-seven Democrats, including several
committee chairs, have signed a letter led by Natural Resources
Committee Chair Raúl M. Grijalva proposing to excise permitting
reform from the continuing resolution. The letter reportedly came as a
surprise to Democratic leaders. The signatories extend well beyond The
Squad, including a number of New Democrats seemingly aggravated by
Schumer taking their votes for granted. House leaders’ tone
regarding the deal has turned noticeably chilly
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past few days: “It’s simply a fact that this was not our
agreement,” House Whip Steney Hoyer said
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Wednesday. House Speaker Nancy Pelosi confirmed that she’d whip the
House to vote for a continuing resolution that included permitting
reform but that the continuing resolution might or might not include
this provision.

Those familiar with the process say details are being worked out
mainly by Manchin and Schumer, along with Senators Brian Schatz and
Tom Carper, who chairs the Environment and Public Works Committee
reportedly charged with figuring out most details outside of the
Mountain Valley Pipeline. That work is being headed by Manchin’s
staff in the Energy Committee, the source said. Schumer’s office
said it did not have a timeline for when official text might be
released.

Those supporting the still-unknown permitting deal claim that it is
necessary both for maintaining a working relationship with Manchin and
for the climate. Decarbonizing the United States will require building
an enormous amount of wind and solar power as well as transmission
infrastructure, since much more activity—from transportation to
heating—will draw power from a low-carbon grid. A summary of the
permitting reform text that has circulated among Senate Democrats in
recent days states that permitting reform would “help expedite the
nationwide buildout of power sector transmission infrastructure that
is critical to deploying the cleaner generation needed to hit
President Biden’s climate goals,” granting FERC greater authority
to issue permits for projects deemed to be in the national interest
and oversee how costs and incentive programs are allocated.

Climate groups, however, worry that the sweeping negative impact of
slimming down NEPA and Clean Water Act checks on new projects will
handily outweigh any benefits furnished by new transmission. “This
whole thing is a fossil fuel package, and it is deeply offensive for
senators and other leaders to say this is a clean energy savior vessel
when it absolutely is not,” said Jean Su, energy justice program
director and senior attorney at the Center for Biological Diversity.
“When you look at the bill as a whole, expediting of transmission
comes at the severely disproportionate cost of green-lighting fossil
fuels.”

In a letter
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House Speaker Pelosi, representatives from more than 30 environmental
justice groups warn the proposed text “greatly restricts access to
the courts to enforce every federal environmental and public health
law that we have; weakens public disclosure and public comment
requirements,” and would speed along polluting projects in already
polluted places.

Just about everyone debating permitting reform agrees that America’s
system for building things is in need of repair. The danger in
pursuing this particular package lies, critics argue, in severely
limiting the few tools that vulnerable communities have to fight off
everything from pipelines to petrochemical plants and new highways.
The main impact of this vision for permitting reform comes through
shortening the timelines of environmental review processes. Doing that
gives a leg up to better-resourced groups, as sifting through
bureaucratic processes tends to be a hefty undertaking for those that
lack an army of lawyers.

It’s hard to see how that would do anything other than favor fossil
fuel development. Though there are a number of anecdotal cases for
environmental reviews slowing down clean energy, the empirical
argument is less clear. Researchers have found that the median time
needed to complete a NEPA review was just 131 days, with more than 80
percent processed as categorical exclusions
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Projects eligible for categorical exclusions from the ordinary review
process are those the Council on Environmental Quality determines not
to “have a significant effect on the human environment.”

The draft text of permitting reform expands the scope of categorical
exclusions that are regularly applied to oil and gas
projects—including
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Horizon_ rig—in a way that could include more clean energy projects
and level the playing field.

Many advocates are leery of categorical exclusions writ large. A more
careful analysis also isn’t necessarily a slower one. Analyzing
41,000 NEPA decisions completed by the U.S. Forest Service between
2004 and 2020, legal scholars John C. Ruple, Jamie Pleune, and Erik
Heiny found
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delays associated with the law are owed to “inadequate staffing,
insufficient funding,” and “time spent on interagency
coordination,” not a delay in permitting. “Contrary to widely held
assumptions,” they write, “we found that a less rigorous level of
analysis often fails to deliver faster decisions.” As Aaron
Gordon reported
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for _Vice,_ the agencies that handle such decisions are chronically
understaffed, with many now adding a growing number of climate
disasters to already full plates. According to the most recent draft
on offer, this version of permitting reform wouldn’t give regulators
more resources to do their jobs; it would require them to do them more
quickly. Forty years of bludgeoning state capacity has not made it
more efficient. The gamble proposed by proponents of the side deal is
that now it will.

Neither is the bill a panacea for local opposition; locals seeking to
block a project can lean on any number of local, state, and federal
provisions to keep stuff from getting built. “There’s no way
around getting the backing of politically powerful players where you
want to get a project through,” Earthjustice director Abigail
Dillan told me. Decarbonizing the U.S. economy, that is—an
awe-inspiring task—will require a certain amount of democratic
consent.

“If you had a sophisticated civil service with lots of resources,
part of the idea is the state trying to balance and accommodate and
listen to different interests,” said Danny Cullenward, a climate
economist and lawyer, and policy director of the nonprofit CarbonPlan.
“If you don’t have that, people are just going to try to mint
permits and be told there’s a timeline to do that. That will help
the development of some clean things, and lots of other things too.
It’s a blunt tool.”

The provisions of permitting reform that reduce wealthy landowners’
ability to gum up wind farm developments, that is, will also make it
easier for fossil fuel companies to defeat grassroots objections to
new liquefied natural gas terminals or fossil fuel pipelines, for
instance. “To the extent that clean energy might be helped by a
fast-tracking of federal environmental analysis of clean energy, it
does the same for fossil fuels. At a time that we need to be dialing
up clean energy and winding down fossil fuels, this is not a policy
that advances this imperative,” said Dillan.

That danger would be magnified if the GOP takes the White House in
2024. “I’m not afraid of how the wind and solar tax credits will
operate in a Republican administration,” said Cullenward. “That is
definitely not true with regards to permitting reform. The ability to
redirect is more about the discretionary priorities of the
administration.”

Some provisions in the draft are aimed explicitly at reinstating
Trump-era priorities. Among those are changes to Section 401 of the
Clean Water Act, which New York State has used
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stop an interstate gas pipeline and Washington used to defeat a
coal-export terminal. The draft text would limit the amount of time
states have to bring objections against energy projects and would
require challengers to formulate their objections based strictly on
water quality concerns.

Dillan pointed to the need for a more systematic evaluation of new
authorities built into legislation that’s already on the books
before rushing into a sweeping overhaul of environmental review
processes. The Bipartisan Infrastructure Framework, or BIF, passed
last year reaffirms the Federal Energy Regulatory Commission’s
ability to override state permit denials for transmission lines
through “backstop authority.” As part of its $2.9 trillion in
funding for transmission, the Inflation Reduction Act allocated
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to the Department of Energy to site onshore and offshore transmission
lines specifically. The DOE also has new siting authorities in the
BIF. There’s additional IRA money that could be used for
transmission via the Agriculture Department, as well, which
administers rural electric cooperatives. There are funds there too for
states and regional transmission organizations to coordinate on
planning.

For now, everyone’s still waiting to see what a small handful of
senators and whomever they’re talking to mean by the words
“permitting reform.” Progressives fear an agreement on that
concept could get much worse in the quest to collect the 10 Republican
votes needed for passage. A permitting reform bill
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by West Virginia Senator Shelly Moore Capito this week—co-sponsored
by 39 senators—would allow states to approve drilling on whatever
federal lands happen to fall within their borders, among other extreme
measures.

The best hope for those looking to stop the side deal now is for
Democratic leaders to spurn Manchin with a “clean C.R.,” punting
off permitting reform to a future routine, must-pass bill like the
National Defense Authorization Act, where they might have more
leverage. But the GOP could also easily kill the bill on their own,
denying Manchin and Schumer the 10 votes they need unless Democrats
agree to abolish the concept of federal land and other maximalist
demands. If a deal does go ahead, it’s possible that opponents could
work on amendments to it; a spokesperson for the Congressional
Progressive Caucus said it was “too hard to say” where it would
stand on amendments at this point, saying it was “something we’d
have to evaluate down the line.”

_[KATE ARONOFF is a staff writer at The New Republic. @KateAronoff
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* Climate Crisis
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* Climate Change
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* Climate disaster
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* green politics
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* Democratic Party
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* Congress
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* Senate
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* Joe Manchin
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* Chuck Schumer
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* coal
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* Energy
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* Green New Deal
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* GND
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* Inflation Reducation Act
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* Permitting Reform
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