February 27, 2023

Permitting Reform Redux

Posted on February 27, 2023 by Bill Brownell

In an earlier blog, I commented on this Administration’s “Action Plan” to accelerate infrastructure development following enactment of the Inflation Reduction Act (IRA) [New Action Plan], and Senator Manchin’s related permitting reform efforts [October 11, 2022 Manchin Letter], and I expressed hope that shared interests in a new energy economy could provide a starting point for progress. I noted that all seem to agree that permitting agencies should be appropriately funded and staffed, that agencies should be required to better coordinate environmental reviews, and that the permitting process should be completed within a reasonable time. 

These steps are table stakes, which was brought home by a more recent post by Seth Jaffe regarding the Thacker Pass mine NEPA review. As Seth explained, while the Thacker Pass NEPA evaluation was a plain vanilla review, it still took one year and then received over an additional two years of judicial scrutiny. While the NEPA review ultimately survived judicial scrutiny, that saga demonstrates that something is going to have to change if we are to build the new energy infrastructure–transmission lines, energy storage facilities, pipelines for energy resilience, and renewable generation—in a timely fashion.

Where do permitting reform discussions stand?  Senate Energy and Natural Resources Chair Joe Manchin (D-W.Va.) and House Natural Resources Chair Bruce Westerman (R-Ark.) have been discussing the path forward. While Republicans make no secret that they plan to bring an energy package to the floor this spring that would include NEPA reforms, Westerman has said he sees no point in trying to advance a permitting bill that would not have support from Democrats. And for most Democrats, NEPA is sacrosanct.  As a result, it is not surprising that while both parties continue to express an interest in permit reform, they remain far apart on many of the particulars. Democrats argue for increased funding and Republicans push for limits on NEPA review and court challenges.  

And while Congress debates, OMB is reviewing CEQ’s plan to overhaul the Trump Administration NEPA reforms. The draft NEPA proposal that went to OMB at the end of January would restore requirements revised by the prior administration, but reportedly will also seek other ways to speed approvals for the clean energy infrastructure this administration favors.  How this will be done while balancing calls from environmental justice and other groups to ensure that any rule preserves their participation rights and ensures rigorous review has yet to be seen.  And so the pendulum swings. 

If this all sounds familiar, it is. The promise of speedier permit review has always been stymied by an unwillingness to accept substantive revisions to NEPA requirements that have evolved into tools to restrain development.  But perhaps there are glimmers of hope.

In recent remarks at Georgetown University, the Biden Administration’s national climate adviser (Ali Zaidi) remarked that IRA includes $1 billion to help the federal government complete NEPA reviews more swiftly. Zaidi expressed “optimism” that permitting reform legislation will ultimately pass Congress. And Democratic Representative Scott Peters has expressed agreement that solving the climate crisis will require reexamination of long-standing environmental regulations, including NEPA. Peters reportedly sees his role as “driving the facts” to environmental advocacy groups and his Democratic colleagues. Progress perhaps?

At the end of the day, I could not agree more with Seth’s conclusion in his recent blog that: “We are going to have to start developing doctrines that speed review of these cases.”  Not everyone will be happy, but that is the price of realizing the benefits of the Inflation Reduction Act.