In the past few months permitting reform has been top of mind for federal lawmakers on both sides of the aisle, and for good reason. The current permitting process under the National Environmental Policy Act (NEPA) takes an average of 4.5 years to complete and requires millions of dollars to navigate. This hurts community development, economic growth, energy innovation, and environmental progress.
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Bipartisan support for permitting reform exists at the 30,000-foot level, and there are some areas of commonality in legislation introduced by Democrats and Republicans. However, there is also disagreement along party lines on what the specifics of comprehensive permitting reform would look like and how to address major sticking points like transmission or judicial review. Democrats and Republicans have begun to offer their own proposals in hopes of striking a bipartisan, bicameral deal.
Republican Permitting Reform Proposals
The BUILDER Act
In the House of Representatives, Republicans unveiled their vision for permitting reform by way of the Building U.S. Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act, which was included in the House-passed Lower Energy Costs Act (H.R. 1). Key provisions of the BUILDER Act, introduced by Rep. Garret Graves (R-LA) include:
- Implementing page limits for Environmental Assessments (EA) and Environmental Impact Statements (EIS). Respective agencies would also have two years to complete an EIS and one year to complete an EA. Currently, there is no cap for review completion or page lengths.
- Restricting the statute of limitations for NEPA-related lawsuits to 120 days. Today, the statute of limitations is six years.
- Designating one federal agency as the lead agency to conduct a NEPA review. This would reduce inefficiencies and bureaucracy that slows down the NEPA process.
- Directing agencies to use previously completed EAs and EISs for projects that are “substantially the same.”
- Designating actions such as transmission line upgrades and drilling geothermal wells as “non-major federal actions” which don’t require EAs or EISs in order to be completed.
- Streamlining the approval of actions such as feasibility studies, mine waste reclamation, and modernization of mining processing facilities.
The RESTART Act
In the Senate, two legislative proposals have emerged out of the Energy and Natural Resources Committee (ENR) and the Environment and Public Works Committee(EPW): the Revitalizing the Economy by Simplifying Timelines and Assuring Regulatory Transparency (RESTART) Act and the Spur Permitting of Underdeveloped Resources (SPUR) Act.
The RESTART Act, introduced by EPW Ranking Member Shelley Moore Capito (R-WV), includes identical NEPA reforms to the BUILDER Act, including maximum page limits for EAs and EISs and instituting a shorter statute of limitations for litigation. In addition to reforming NEPA, the RESTART Act would:
- Codify the Trump Administration’s Navigable Waters Protection Rule’s definition of “waters of the United States.” Specifically, this would narrow the scope of the Environmental Protection Agency’s authority to regulate the actions of private property owners whose property is not on navigable waters.
- Prevent state actions from unreasonably blocking projects by delaying issuing or denying Certifications under section 401 of the Clean Water Act.
- Reform New Source Review under the Clean Air Act. Before making modifications to existing facilities, a facility must first complete New Source Review and receive a permit to ensure that the upgrades would result in no significant increases in pollution. This application process is expensive and lengthy, which often disincentivizes investments in cleaner technologies and appliances.
- Streamline state Primacy applications for Class VI Injection Wells. Class VI wells are used to inject captured carbon dioxide into deep rock formations where it is safely stored. States that receive Primacy are allowed to permit and approve Class VI projects without federal oversight, but with stricter environmental standards, which allows for quicker permitting reviews and approval. Getting more Class VI wells approved and operational is critical for advancing carbon capture storage and sequestration activities.
The SPUR Act
ENR Ranking Member John Barrasso (R-WY) introduced the SPUR Act that would make the same changes to NEPA as BUILDER and RESTART and would focus on modernizing regulations that impede domestic energy and mineral production. Key provisions of the SPUR Act include:
- Streamlining certain activities on U.S. Forest Service Land. Specifically, the legislation would allow exploration activities that disturb 5 acres or less of U.S. Forest Service (USFS) land to move forward under a notice-level operation, which would expedite the review to 15 days or less.
- Requiring lawsuits against mining project permits and licenses to be filed within 60 days of the project’s approval.
- Amending the Infrastructure Investment and Jobs Act to allow all minerals, regardless of their status as a “critical mineral,” to benefit from streamlined permitting provisions.
- Requiring the Secretary of Interior to approve a final oil and gas leasing program no later than September 30, 2023. The plan must include no less than 11 lease sales in the Gulf of Mexico and offshore Alaska.
- Limiting federal overreach for key energy and mineral projects. For instance, SPUR would prohibit the President from impeding the federal oil and gas leasing process through executive order or regulation without congressional approval. Additionally, it would prevent the Secretary of Interior from instituting a moratorium on mining or mining-related activities on federal lands.
Many of the proposals in the BUILDER, RESTART, and SPUR Acts are also included in C3 Solutions’ Climate and Freedom Agenda.
Democrat Permitting Reform Proposals
Senate Democrats have proposed two pieces of legislation to speed up permitting in the United States. Earlier this month, ENR Chairman Senator Joe Manchin (D-WV), introduced the Building American Energy Security Act of 2023, which borrows largely from language that Senator Manchin introduced last summer.
Manchin’s proposal includes some of the same reforms to NEPA that Republicans have introduced. Overlaps include:
- Instituting the same page limits and timelines for EISs and EAs as the BUILDER Act.
- Directing one lead agency for each review.
- Setting a statute of limitations for NEPA lawsuits. While BUILDER, SPUR, and RESTART set a 120 day limit, Manchin’s proposal includes a 150 day limit.
- Expanding the list of Categorical Exclusions, although the legislation does not specifically say what is and is not a categorical exclusion. Instead, it directs agency heads to propose new categorical exclusions.
The Building American Energy Security Act of 2023 does differ from GOP proposals, most notably in its provisions that increase the authority of the Federal Energy Regulatory Commission (FERC) to site and approve transmission lines that are of “national interest.” While the U.S. does indeed need to improve and upgrade its existing transmission capacity, conservatives fear that Manchin’s proposal poses a threat to private property rights and states’ rights.
The Act also directs the President to designate at least 25 energy infrastructure projects as “high priority” and prioritize permitting these projects. While this may seem good on paper, this part of the plan runs the risk of leaving the fate of our nation’s energy system up to the political whims of different administrations. Instead, policymakers should work to streamline permitting for all energy and infrastructure projects and allow the market and consumers to decide what is and is not “high priority.”
EPW Chair Tom Carper (D-DE) recently introduced the Promoting Efficient and Engaged Reviews (PEER) Act. The bill would institute a two year timeline to complete reviews for projects solely related to climate mitigation and resilience. Importantly, PEER makes no concessions for fossil-related projects. PEER would also establish a new federal siting facility at FERC to accelerate the deployment of long-range transmission lines.
As Jeremy Dillon of E&E reports, PEER also expands community engagement in the permitting process by requiring federal agencies to complete community impact reports as a part of environmental assessments and allocates millions of dollars in grants for states, communities, and tribes to be more engaged in local project reviews. Carper’s bill also directs funding to agencies for staffing in order to improve the turnaround of federal environmental reviews.
The Next Steps Forward
Republicans have tied H.R.1’s permitting provisions to debt ceiling negotiations with the White House. The likelihood of success for this tactic is a bit unclear. Rep. Graves, the lead negotiator for House Republicans, has said there is a “better than 50-50” chance that permitting provisions are included in the final debt ceiling deal. Meanwhile, White House Infrastructure Coordinator Mitch Landrieu said that the debt limit and permitting weren’t necessarily connected, but has said reform is “in play,” according to The Hill’s Rachel Frazin.
Whatever reforms are agreed upon between the White House and House Republicans will have to be bipartisan in nature in order to clear the 60-vote threshold in the Senate. Importantly, Senate Majority Leader Chuck Schumer (D-NY) has said that he is willing to negotiate with Republicans on the issue.
Provisions that could enjoy bipartisan support include streamlining approvals for transmission projects and forest management and conservation activities on federal lands—especially as Democrats in the West witness the physical and economic costs of wildfires. Expanding Categorical Exclusions for geothermal projects—which BUILDER does—would also likely receive support from both sides of the aisle.
Speeding up the permitting process for renewable energy projects is a key priority of Democrats and one that Republicans would also support.
One of the largest areas of disagreement among the parties is the topic of fossil fuels. BUILDER, RESTART, and SPUR all outline pathways to streamline NEPA review for all energy sources, including oil and natural gas. The GOP may be able to garner some Democratic support by making meaningful improvements to the community engagement process. Policymakers should explore ways to make the process easier for the public and stakeholders and to ensure communities’ voices are being heard.
Ultimately, it is hard to accurately predict what Congress and negotiators will agree upon. A final bill will naturally include compromise from both parties. Policymakers should not, however, allow compromise to weaken desperately-needed reforms to federal regulations. Modernizing NEPA and parts of the Clean Air Act and Clean Water Act is crucial to bolstering energy security, addressing environmental challenges, and strengthening our economy.