Both Sides Now — How Permitting Reform May Affect Fossil Fuel, Clean Energy Industries

Permitting reform is the aim not just of the fossil fuel industry but also the clean energy industry, which is looking to simplify the planning, permitting and building of solar and wind farms. Photo: Pixabay via Wikimedia Commons, Creative Commons Zero.

Issue Backgrounder: Both Sides Now — How Permitting Reform May Affect Fossil Fuel, Clean Energy Industries

By Joseph A. Davis

Permitting reform is likely to remain a key environmental issue in this Congress — although the view of important backroom machinations may be obscured.

The topic was ballyhooed but only addressed superficially in the recently passed landmark debt ceiling bill. The main thing that measure did around permitting was to clinch the vote of Sen. Joe Manchin (D-W.Va.) by giving him the Mountain Valley Pipeline, which would carry fossil methane from Manchin’s home state to East Coast markets. It would also please Manchin’s fossil-fuel donors (may require subscription).

 

It isn’t just the gas industry that wants

“permitting reform.” Environmentalists

hoping for a clean energy future want it too.

 

It isn’t just the gas industry, however, that wants “permitting reform.” Environmentalists hoping for a clean energy future want it too. The question is whether there is any meaningful overlap between their two visions, and whether legislation is possible in a deeply divided and often dysfunctional Congress.

In any case, it’s more than just “permitting.” Whether green or brown, projects often have to run a long, punishing gauntlet that may include legislation, funding, private investment, regulatory approvals from multiple agencies, state and federal approvals, land acquisition, diplomatic quarrels, political protests and the inevitable (multiple and lengthy) lawsuits.

The issues are fundamental. The question of drilling in the Arctic National Wildlife Refuge, or ANWR, is (or seems) a primal choice between nature and energy. But oil companies and environmentalists have been struggling over it for many decades. Just when some decision on ANWR seemed “final,” we discover that it wasn’t.

Several very famous pipelines fit this category. Think of the Keystone Pipeline between Canada and the United States. Protests over it began as early as 2013, and President Biden revoked its permit on his first day in office.

Or the Dakota Access Pipeline, which spawned an unprecedented political movement bringing together Native tribes. Protests began in 2016. Former President Donald Trump not only had a stake in it (he sold it off) but got big donations from the company’s CEO. Still, Trump did make sure it got approved and went into operation once he was in the White House.

 

The backroom problem

Another problem with “permitting reform” is that the public is left out of the discussion and in the dark. Congress and the agencies don’t always follow “regular order” when they act.

It’s true that hearings, public comment, open meetings and accessible dockets are the essence of democracy. In legislative hearings, experts and advocates articulate publicly the pros and cons of a bill, as they see it. In markups, you can read the text of proposed bills. Legislators debate their merits and offer amendments, which you can also read. Voting on everything is on the record.

But there are other ways to get bills passed and regulations issued. Big appropriations bills, for example, are often presented to committees by chairpersons as faits accomplis (the “chairman’s mark”). Every member votes for it because every member has some goodies in the bill. Amendments are rare.

There are also the “must-pass” bills — think of stopgap appropriations needed to avert a government shutdown or, as we have recently seen, a debt-ceiling raise. Any provision tucked into these bills is sure to go through without trouble or notice. The bills themselves are often negotiated in private by top leaders.

This, for instance, is how Joe Manchin got the Mountain Valley Pipeline. And it wasn’t Manchin’s first try. See also his effort to get “permitting reform” with the climate-focused Inflation Reduction Act.

 

Green energy visions

Environmentalists — especially the young and often radical activists who played a key role in getting Biden elected — have a vision of a green energy future. To curtail climate heating, they urge the United States and other nations to stop burning fossil fuels and instead generate electricity from sources like solar and wind.

“Electrify everything” has been their mantra. That especially means electrifying cars. Not to mention the heating and cooling of homes and buildings. Even stoves.

In fact, much of the electric power industry has been steadily migrating away from fossil fuels like coal and toward renewables — if only because they are now cheaper than fossil fuels. This steady trend has been dubbed the green energy transition.

Ignore for now the fact that energy-hungry nations like China and India are still building coal plants (they build renewable projects, too). The green energy transition may not be happening fast enough, but it is happening.

 

In the United States, sadly, there are huge

barriers to getting renewable electricity

to the consumers who want to use it.

 

In the United States, sadly, there are huge barriers to getting renewable electricity to the consumers who want to use it. It’s more than just permitting; it’s the grid (may require subscription). The long-distance, high-voltage power lines to move that energy just don’t exist — and they face huge problems getting built. They need “permitting reform,” too.

But green energy may often need utterly different kinds of “permitting reform” than does fossil energy. If the public (and the legislators and regulators) don’t understand that, then we have trouble ahead.

Power lines and pipelines do share one big problem: rights of way. They often have to cross private (or otherwise sensitive) land. To do this, they may need to pay landowners and use the power of eminent domain. Eminent domain means using state power to take land (or right of way) from private landowners unwilling to sell it. This is often politically unpopular.

 

A hard problem facing an unclear future

So far, Sen. Manchin hasn’t garnered bipartisan support for his “permitting reform” proposals. But at least we have a fair idea of what they are. Here is some legislative text and a plain-English summary.

It is worth noting, though, that some of the items on Manchin’s to-do list are fond dreams of the fossil fuel industry but not heartily approved by environmentalists — such as hydrogen pipelines, nuclear projects, minerals projects, etc.

Also potentially problematic is Manchin’s ambition to impose constraints on the courts.

The leading permitting-adjacent proposal from the green side is probably Sen. Tom Carper’s (D-Del.) draft proposal, released May 18 and cosponsored by Sen. Brian Schatz (D-Hawaii). Carper is chair of the Senate Environment Committee, which would have jurisdiction over many of the plan’s provisions.

One key feature of the Carper proposal was setting timelines (not really deadlines) for NEPA environmental impact reviews. This provision actually was enacted as part of the debt ceiling bill.

Many environmental groups have spoken well of Carper’s proposal. So has the U.S Chamber of Commerce. Carper is retiring, however, so if it were to have effect it would mostly be in the current Congress.

It is pretty clear that discussions are continuing on permitting reform, between Republicans and Democrats and between House, Senate and White House. That may not be enough.

Clinching bipartisan deals is hard enough in the best of times. In the remainder of the current Congress’ time, it will face escalating tensions arising from the narrow party divisions in each chamber. That may sweep away any substantive deal on permitting.

As the 2024 election approaches, we can expect the gridlock to get worse. Look what happened when the House tried to bring up a thoroughly Republican bill outlawing gas stove bans — a revolt by the far right that brought the House to a standstill for days.

But the opportunities for mischief will continue to present themselves. Keep an eye on any omnibus or stopgap appropriations bills.

 

The regulatory and legal gauntlet

Meanwhile, to better report the true size and complexity of the challenge presented by “permitting reform,” it is necessary for journalists to understand at least something about the large array of agencies that determine whether projects get built. The following list of players is hardly complete but it’s a start.

• Federal Energy Regulatory Commission: The FERC regulates many aspects of pipelines, power lines and other interstate energy projects. It operates under a wide array of federal laws that few people are familiar with.
• U.S. Army Corps of Engineers: The Corps regulates a variety of projects, often involving water, under quite a few laws, many of them very old. It is supposed to care about both energy and environmental concerns. It has its own power base, especially in Congress — but ultimately is politically responsive to the president.
• U.S. Environmental Protection Agency: The EPA administers most major environmental laws, especially the Clean Air Act and Clean Water Act. A fossil fuel power plant requires an air permit; a pipeline crossing a river may need a state permit under the Clean Water Act.
• Council on Environmental Quality: The CEQ administers the National Environmental Policy Act, or NEPA, which requires most major federally approved projects to have an environmental impact statement or assessment. In practice, these are often done by the agencies and second-guessed by the courts.
• Pipeline and Hazardous Materials Safety Administration: The Transportation Department agency regulates and must approve the safety aspects of pipelines that carry hazardous materials (which may include fossil methane, refined petroleum, etc.)
• Federal land agencies. A number of agencies administer federally owned land: the Bureau of Land Management, the U.S. Forest Service, the U.S. Fish and Wildlife Service and others. If a pipeline or power line crosses their land, they must approve.
• Tribal governments: Native American tribal sovereignty and treaty rights are complex and multifaceted issues — as often violated as followed. They cover both land and water. When a proposed energy project crosses their land, the participation and approval of tribal governments are key.
• State agencies: State governments vary, but most have agencies that must permit things like pipelines and power lines that operate within their borders.
• The courts: After the regulatory gauntlet, many contested energy projects end up in state and federal courts. This inevitably takes a lot of time — commonly years. Courts may account for much of the delay for most projects (although it is often the regulatory issues being litigated). It is normally hard for legislation passed by Congress to reach into this sphere, because of Constitutional issues and the separation of powers.

[Editor’s Note: For additional coverage of the permitting reform issue, see an earlier Backgrounder on prospects for reform and on the Manchin “side deal.” You can also track the latest permitting reform news with EJToday headlines.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

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* From the weekly news magazine SEJournal Online, Vol. 8, No. 25. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.