This Is the Best Permitting Reform Deal We’re Going to Get

We now know what a real bipartisan permitting overhaul could look like.

Senators Joe Manchin and John Barrasso on Monday unveiled the Energy Permitting Reform Act, the product of months of negotiations over how to craft a sweeping change to the nation’s federal energy project approvals system that could actually pass through Congress. It’s got a little bit of everything: For the oil and gas folks, there’s mandatory offshore oil and gas lease sales and streamlined permitting requirements; for renewables, there’s faster permits for “low-impact” construction jobs and new deployment goals; for transmission, there’s siting authority for interstate lines, compulsory interregional planning, and clarity on cost allocation. There are also sections devoted to helping mining projects navigate legal uncertainties around mill sites and assistance for hydropower projects needing extended licenses. Lastly there’s a fresh limit on the length of time allowed for legal challenges against energy projects of all types.

In other words, it’s an energy smorgasbord, and all sorts of fuels and resources are invited to the party.

Will such a bill be able to sail through Congress in the middle of a close election cycle? Unclear, but highly doubtful. Will it be able to overcome opposition from the major environmental groups — Sierra Club, the Natural Resources Defense Council, and Earthjustice — that stymied Manchin’s prior permitting deal? We have yet to hear from President Joe Biden, Vice President Kamala Harris, or congressional Democratic leaders on whether they support the bill, and representatives for the White House and Senate Majority Leader Chuck Schumer did not respond to requests for comment.

But to the people most deeply invested in bipartisan permitting compromise, none of that matters — for now, at least. In their view, this bill sets the parameters for whatever permitting deal will eventually become law, whether that’s in this Congress or the next.

“Some of the environmental community is going to look at this and see it as a net win for climate change, and some in the environmental community are more anti-fossil fuel than they are pro-reducing emissions, and so it’s harder for them to get over the fossil fuel aspect of the bill,” Xan Fishman, senior director of the energy program at the Bipartisan Policy Center, told me. “But to some extent, that’s how bipartisan deals come together. Not everyone is going to be happy.”

The biggest gain for energy transition advocates is plainly the transmission language. Since the Inflation Reduction Act (which also similarly frustrated environmental groups with its giveaways to oil and gas) became law, it has been painfully apparent that easing the federal permitting burden on transmission could speed up the deployment of renewables projects boosted by the climate law. But Republicans have so far been unwilling to consider advancing transmission support on its own, in which case the Beltway Elite conventional wisdom calls for sweetening the deal with measures that benefit fossil fuels.

Agencies have already tried to advance permitting assistance sans new legislation. The Federal Energy Regulatory Commission has advanced a potential fix to regional transmission planning via Order 1920, and the Interior Department has moved forward with regulation to ease permitting burdens on solar and wind projects. Congress has also moved piecemeal solutions to sector-specific problems, such as the ADVANCE Act, which provided federal officials with new legal resources to process cutting-edge nuclear projects. But these have not achieved anything close to the broad changes that industry representatives say are needed for the overall permitting regime.

Fishman and other observers in D.C. expect Manchin to try and move the bill out of his Senate Energy and Natural Resources Committee imminently, but it’s best shot of seeing the floor won’t come until after the election, during the so-called “lame duck” session. They’re also expecting more permitting proposals out of a different committee, Senate Environment and Public Works, which has key jurisdiction over activities of the Environmental Protection Agency. Manchin couldn’t touch those because they don’t fall under the remit of his committee, but advocates for a deal believe EPA language would help relieve more of the burden projects face.

Yet with some climate Democrats coming out in support of the bill already, those seeking a permitting deal say the immediate odds for the Manchin-Barrasso bill enactment into law are not at all the point. What matters is that we now have a real life example of what a true blue bipartisan compromise on permitting that advances the energy transition can look like.

“Even if this doesn’t pass, this is the baseline for conversations,” Ryan Fitzpatrick of Third Way told me. “This is a net win for climate … it’s the starting point, however it may be adapted.”