With Manchin’s bill aside, other permitting proposals await

Inclusion of language to approve Mountain Valley Pipeline drew condemnation from climate advocates and property owners along its path

Republicans often view a permitting overhaul as a way to cut through environmental reviews, while Democrats think of it as a way to speed low-carbon power projects and decouple from fossil fuels. Above, high-voltage electricity transmission towers and lines in Texas. (Justin Sulivan/Getty Images)
Republicans often view a permitting overhaul as a way to cut through environmental reviews, while Democrats think of it as a way to speed low-carbon power projects and decouple from fossil fuels. Above, high-voltage electricity transmission towers and lines in Texas. (Justin Sulivan/Getty Images)
Posted September 28, 2022 at 6:30am

Despite the apparent death of Sen. Joe Manchin III’s permit overhaul legislation before it even got a vote, there are ingredients from both parties that could be blended into a bill to change how large construction projects such as power lines and highways are greenlighted in America..

Republicans often view a permitting overhaul as a way to cut through environmental reviews, while Democrats think of it as a way to speed low-carbon power projects into existence and decouple from fossil fuel-generated electricity.

Manchin, the West Virginia Democrat who frequently argues that fossil fuels will continue to play an important role during a transition to zero-carbon energy, withdrew his permitting overhaul proposal from the must-pass spending bill as opposition from both parties appeared insurmountable. Majority Leader Charles E. Schumer said he would proceed with a spending bill to fund the government into mid-December without Manchin’s provision.

[Stopgap funding measure advances after permitting concession]

In particular, Manchin’s inclusion of language to approve the Mountain Valley Pipeline, an unfinished gas project in his state that broke ground in 2018, drew condemnation from climate action advocates and property owners along its path.

Schumer's pledge

Schumer said he would push to pass legislation to change permitting law before the end of the year, although a route to passage through both chambers remains narrow and would have to overcome a series of objections, including those from rural Republicans over property rights, environmental justice advocates over local pollution and climate groups over greenhouse gas emissions.

“Sen. Manchin, myself and others will continue to have conversations about the best way to ensure responsible permitting reform is passed before the end of the year,” Schumer said on the Senate floor after the withdrawal of Manchin’s provision.

Manchin said Tuesday in a statement that a “failed vote” on his proposal — an agreement he and Schumer reached to secure the West Virginian’s vote on Democrats’ climate, health care and tax law — would “embolden leaders like [Russian President Vladimir] Putin who wish to see America fail.”

Said Manchin: “It is unfortunate that members of the United States Senate are allowing politics to put the energy security of our nation at risk.”

The United States is the No. 1 producer of oil and gas in the world, according to the Energy Information Administration, and has seen an uptick in gas production in recent months, with more natural gas rigs operating in September than before the COVID-19 pandemic began in 2020.

Environmental law experts said approving the Mountain Valley Pipeline in a spending bill, overruling the permitting authority of federal agencies and limiting access to the courts for opponents of the project, would be a highly unusual move. They compared it to a legislative maneuver by Sen. Howard Baker, R-Tenn., in the 1970s to exempt a dam in his state from the Endangered Species Act, or the congressional decision in the same decade to greenlight the Trans-Alaska Pipeline.

“In a situation like this we need a week or two to regroup and figure out the art of the possible,” said Sen. Brian Schatz, D-Hawaii. Schatz supported Manchin’s original proposal, in part because of provisions that would ensure faster permitting for transmission lines.

Clean energy groups supporting Manchin’s bill cited the need for the fast construction of transmission lines. It would give the federal government authority over transmission lines found to be in the national interest and require the Federal Energy Regulatory Commission to ensure that costs are allocated to the customers they benefit.

Sen. John Cornyn, R-Texas, referred to these provisions as a “power grab” for the Federal Energy Regulatory Commission, which oversees large transmission projects.

The bill would allow FERC to override a state’s objections to siting transmission lines. “This bill falls short in almost every regard,” Cornyn said.

Despite concerns over those provisions, Cornyn said Congress could pass a bipartisan permitting bill in the coming months.

Other changes

House Natural Resources Chairman Raúl M. Grijalva, D-Ariz., was an early opponent of Manchin’s proposal, referring to it as a “fossil fuel brainchild” after the legislative text was released. He led a letter signed by 76 other members urging House leadership to separate the permitting legislation from the must-pass spending bill.

While he and other progressive Democrats agreed the current permitting system in the U.S. needs reform, Grijalva said it should be done by requiring the federal government to study cumulative impacts and strengthening public input. Supporters of a bill Grijalva and Rep. A. Donald McEachin, D-Va., introduced argue that ensuring that communities most affected by polluting industries have a say in the process could prevent legal challenges down the line, a frequent cause for delays in energy projects.

“I stand ready to work constructively with my colleagues on other permitting legislative efforts that can accelerate the clean energy transition, while also protecting the already overburdened,” Grijalva said in a statement.

Sen. Bernie Sanders, I-Vt., said he would be open to discussing permitting changes focused on expediting clean energy projects, while adding that “the last thing” the U.S. needs is additional fossil fuel infrastructure. Manchin’s proposal would have benefited both clean energy and fossil fuel projects, and it included explicit requirements for the federal government to expedite some fossil fuel projects in addition to the Mountain Valley Pipeline.

But Republicans who have signaled a desire to pass permitting changes have expressed support for legislation that would advance both low-carbon and fossil energy projects.

Legislation by Sen. Shelley Moore Capito, R-W.Va., introduced this month included a number of Republican priorities that drew Democratic opposition when implemented by the Trump administration. They include faster environmental reviews, a less stringent definition of federal jurisdiction under the Clean Water Act and limitations on the consideration of carbon's social costs in the permitting process. Her bill would also give a congressional go-ahead to that Mountain Valley project in West Virginia.

Aidan Quigley contributed to this report.