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Permit Battles

Why Resolving Democrats’ Internal War on Climate Policy Will Be Hard

Details on the permitting reform demanded by Senator Manchin remain scant. Many fear it could prove a giveaway to fossil fuel companies.

Chuck Schumer holds his hand up.
Drew Angerer/Getty Images
Senator Chuck Schumer speaks to reporters in January.

Last month, Senator Chuck Schumer struck a deal. 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, 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 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 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.

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 in the past few days: “It’s simply a fact that this was not our agreement,” House Whip Steney Hoyer said on 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 to 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. 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 BP’s Deepwater 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 that 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 recently 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 to 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 $760 million 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 introduced 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.”