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Permitting legislation finds roadblocks in path to NDAA

Two key GOP negotiators say inclusion of provisions is ‘not an option’

Sen. Joe Manchin III's legislation would change the Clean Water Act, set statutes of limitations on environmental lawsuits and create timelines for environmental reviews of industrial projects.
Sen. Joe Manchin III's legislation would change the Clean Water Act, set statutes of limitations on environmental lawsuits and create timelines for environmental reviews of industrial projects. (Tom Williams/CQ Roll Call)

Prospects that Sen. Joe Manchin III, D-W.Va., will be able to attach an energy permitting proposal of his to the annual defense policy bill dimmed after two key Republicans said they opposed the idea.

Rep. Mike D. Rogers, R-Ala., the ranking member on the House Armed Services Committee, said during House votes Thursday that Manchin’s proposal would not be included in the defense authorization bill for fiscal 2023.

“Not an option,” Rogers said. Pressed, he said, “We haven’t even talked about it because it’s not an option.” Sen. James M. Inhofe, R-Okla., the ranking member on the Senate Armed Services Committee, also said he opposed attaching the permitting bill to funding legislation in September.

Rogers and Inhofe are two of the four key negotiators, along with Sen. Jack Reed, D-R.I., and Rep. Adam Smith, D-Wash., the chairmen of the Senate and House committees with jurisdiction over the Pentagon, plus leadership, who are negotiating the final details of the defense bill, which has passed and been enacted every year for 61 years straight.

While there is interest in both parties to change federal laws governing federal permits for major infrastructure projects, Republicans and Democrats opposed fusing Manchin’s proposal onto funding legislation in September, prompting the West Virginian to withdraw his legislation.

A spokeswoman for Manchin said the senator was trying to get the permitting proposal passed before the end of the year.

Senate Majority Leader Charles E. Schumer last week said the two are huddling on the matter. “As you saw when we tried it last time, there weren’t enough Republican votes,” he told reporters Tuesday. “I’m working with Sen. Manchin to see what we can get done.”

Manchin’s legislation would change the Clean Water Act, set statutes of limitations on environmental lawsuits and create timelines for how long environmental reviews of large-scale industrial projects can take.

Unless the proposal is rewritten, it would also require the completion of the Mountain Valley Pipeline, which would transport natural gas about 300 miles between West Virginia and southern Virginia. That element, in particular, drew a furious response from environmental groups and Democrats in Congress.

Inhofe said he’s against Manchin’s measure.

“The National Defense Authorization Act is the most important bill we pass every year and I take that very seriously,” Inhofe said in an emailed statement. “I did not support Sen. Manchin’s language in the CR and I will not support it in the NDAA,” he said, using the shorthand for a continuing resolution to keep the government running. “Plainly put, I don’t see a path for permitting reform on the NDAA.”

For Congress to approve one specific construction project would be highly unusual and depart from standard procedure, legal experts say. That domain is largely left to agencies and courts.

In rare instances, specific approvals, such as for an oil pipeline in Alaska and a dam in Tennessee, have gone through Congress.

Sen. Shelley Moore Capito, R-W.Va., in September introduced her own permitting legislation, which would take a more aggressive approach to limiting environmental oversight and safeguards.

A representative for Reed did not respond to a request for comment.

But Smith was one of 72 House Democrats who said in a letter to Speaker Nancy Pelosi, D-Calif., and House Majority Leader Steny Hoyer, D-Md., that permitting legislation should be kept out of “must-pass” bills, a term that likely includes the defense bill.

“We urge you to ensure that these provisions are kept out of a continuing resolution or any other must-pass legislation this year,” the letter says.

The American Petroleum Institute, a lobby for fossil energy, named permitting change, including steps to limit the length of environmental reviews for construction projects, among its top priorities for the upcoming Congress.

Sen. Kevin Cramer, R-N.D., said in an interview he’s told Manchin that adding elements to the defense bill would not necessarily derail the bill but could have broader-reaching repercussions.

“My concern would be that we would do anything that would hurt the NDAA in terms of its vote total,” Cramer said. “The actual margin does matter. That sends a signal to adversaries and allies.”

A member of the Senate Armed Services Committee, he said attaching permitting legislation to the defense bill would be hard but not impossible.

“The president wants to do it, Joe Manchin wants to do it, Chuck Schumer wants to do it,” he said, adding that the defense bill should “remain as pure as possible.”

Cramer said: “It’s harder and harder and harder to keep these things pure, these big packages, these must-pass packages pure.”

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