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Why the Manchin-Barrasso bill might not be worth it.
Senator Joe Manchin’s new permitting deal is the best shot Congress will get this year to boost transmission and renewables. It may also lock in generations of future fossil fuel production and exports.
To many climate activists, that’s not a trade worth making.
Tomorrow, the Senate Energy and Natural Resources Committee will vote on a deal Manchin struck with the panel’s top Republican, John Barrasso, that couples faster transmission and renewable energy approvals and restrictions on litigation with much stronger requirements for regular oil, gas, and coal lease sales on federal lands. It would also restrict the Energy Department from continuing its pause on liquified natural gas export terminal approvals (an action that has already been overturned in court) and also, activists note, potentially bar the federal government from having authority over oil and gas drill sites on private lands. Critics say this would take away a tool regulators in Washington can use to require a well — a potential source of methane, the hyper-potent greenhouse gas — be plugged in the event the owner goes bankrupt and abandons the site.
The environmentalist reaction to the bill has been swift and loud, with a broad swath of organizations coming out fiercely against its passage. Even some groups seen as more business-friendly, such as the Environmental Defense Fund, praised the transmission bits while calling out “permitting proposals drafted without meaningful consultation of frontline communities” and proclaiming the fossil fuel language objectionable.
In a development that has quietly befuddled activists, a growing number of climate-friendly Democrats are coming out in favor of the legislation. Senators John Hickenlooper and Martin Heinrich, whose transmission proposals landed in the deal, are likely to vote in favor of the bill in committee this week.
“This legislation is our opportunity to unlock an American-made clean energy future,” Heinrich told Politico’s E&E News in a statement last week. “It will create good-paying jobs, grow our workforce, and help us deliver affordable and reliable electricity to all Americans — all while helping to meet our ambitious and urgent climate goals.”
Fossil fuels produced on federal lands for energy represent a substantial portion of the greenhouse gas emissions produced by the United States, a fact even Biden regulators have acknowledged while allowing more sales.
Whether this legislation can get to a full vote in the Senate is far from certain, and it’s a longshot for passage in this Congress. The bill goes further in favor of fossil fuels than the 2022 Manchin permitting deal, which was blocked by a confluence of opposition from environmentalists and far-right legislators that wanted an even more aggressive approach to overhauling environmental laws.
The same sort of coalition could stall this bill. But it would not surprise me if many more Democrats added their voices and votes in support. Over my years of reporting in Congress, I found a growing sense of frustration in Democratic circles at the lack of shovel-ready projects funded by the Inflation Reduction Act. They blame the National Environmental Policy Act, the Federal Energy Regulatory Commission, and pencil-pushing government officials. They’re tired of being asked “will they or won’t they” questions by Hill reporters about an ever-elusive permitting deal. So they may take any leap of faith to see those visual victories come to fruition faster — and help shore up political support for keeping the landmark climate law in place.
But that’s not how climate activists want them to see the bill. At all.
“Honestly, the amount of fossil fuels that can be deployed out of this far outweighs to me the gains we would get in transmission,” Johanna Bozuwa, executive director of the Climate and Community Project, told me. “I can understand the ‘for’ side of this. People are frustrated and they are sick of transmission not being deployed. Whereas the people who are against this bill are like, you need to think about the ramifications right now. Because what is being built into this bill is not next year’s emissions. It’s thirty years of emissions.”
Under Manchin-Barrasso, it would be much harder for the federal government to reduce how much land and sea it sells to fossil fuel companies every year.
The federal government regularly offers land for oil and gas companies to purchase for drilling sites. Deciding what land to sell and how much acreage to offer is normally a process decided at the bureaucratic level in tandem with industry input and environmental analyses. Under the Trump administration, lease sales were plentiful, though some had to be canceled because of inadequate climate and species reviews. Biden’s gone the opposite direction, but in order to win Manchin’s crucial vote, the IRA also complicated efforts to wind down fossil fuel auctions. One of Manchin’s non-negotiables for passing the bill was tying renewables leasing to millions of acres in mandatory oil and gas lease sales. In other words, to sell land for renewables, the government must now sell fossil fuels too.
Specifically, the IRA required the government to sell either millions of acres or the acreage that industry expresses interest in. So far, the Interior Department has found wiggle room by saying the acres they sell do not need to align precisely with properties requested by developers. Some in the oil and gas industry have accused the Biden administration of deliberately offering land the industry doesn’t want.
What Manchin-Barrasso would do, activists say, is essentially tie the hands of the government on this requirement. One provision would insert the phrase “for which expressions of interest have been submitted” into the mandatory onshore oil and gas leasing totals in the IRA, in effect putting industry’s desired land for leasing into statute as a requirement.
The bill would also require the government to hold annual offshore oil and gas lease sales at a time when the Biden administration is non-committal about auctioning in certain future years before environmental analyses are conducted.
There’s also the part about drilling on private land. A provision in Manchin-Barrasso appears to ban the federal government from requesting applications for permits to drill on private lands in circumstances when the government owns only the minerals beneath the surface but not above. These applications, known as APDs, are a key opportunity for federal regulators to require project developers post a bond on oil and gas wells as well as provide at least some level of info on environmental mitigation measures. Advocates emphasize this input also comes with an opportunity to intervene when an operator goes bankrupt and leaves a well unplugged, puking methane into the atmosphere. Manchin-Barrasso would instead cede that authority entirely to the states.
The bill would also require the government to process applications for coal leasing when the Biden administration is trying, essentially, to stop such leasing altogether.
Plus there’s the LNG export language which, well, explains itself.
For the energy transition, the bill would: create timetables for permitting renewables on federal rights-of-way; allow minimal environmental reviews of “low-disturbance” renewables construction projects; set a national goal of 50 gigawatts of renewables on federal land by 2030; ease geothermal permitting; provide easier environmental reviews to certain transmission activities within recently approved rights-of-way; grant FERC more authority to greenlight transmission projects that are considered to be in the “national interest;” and give hydropower projects more lenience on license extensions.
To some, that might be a worthwhile compromise — in the world of the possible, the deal may be the biggest opportunity for real gains on transmission and renewables this Congress. Should the November elections swing in the GOP’s direction, Democrats seeking a less fossil-friendly permitting deal would have essentially no chance because they could lose the House, the Senate and the White House, making this the only game in town, potentially for a long time. This bill would also achieve the elusive dream of a bipartisan compromise, where both sides get some but not all of what they want to achieve incremental progress on something viewed in D.C. as a long bemoaned problem.
“It is a really good bipartisan deal,” Xan Fishman of the Bipartisan Policy Center told me last week. “Not everyone is going to be happy.”
That argument isn’t convincing Rep. Jared Huffman, a top Democrat on the House Natural Resources Committee, who has emerged as a vocal critic of the Senate legislation. Huffman told me he wants to see transmission boosted “without massive giveaways to the fossil fuel industry.” When asked if he’s comfortable with accusations he’s holding up a bipartisan compromise, he simply said, “Whatever.”
“This is a bad deal. It just goes way too far in the direction of oil, gas and coal,” he told me. “We’ve got to stop dignifying this notion that to take one step forward on clean energy, we’ve got to take two steps backward on fossil fuel production.”
Brett Hartl, government affairs director for the Center for Biological Diversity, noted to me that when the Inflation Reduction Act was passed into law, Democrats had analyses showing the potential decarbonization benefits of the legislation — oil and gas warts and all. It ultimately showed net wins on climate, no matter how hard the other stuff may have been to swallow.
“Where’s the math that proves this is good?” he asked of the Manchin-Barrasso bill.
The truth is, we don’t know the climate impacts of this legislation yet, though experts are at work poring over the details. Meanwhile, some climate advocates are trying to get their own math out there. At the start of the week, I attended a small roundtable discussion with Jeremy Symons, a longtime environmental advocate who once worked on the Senate Environment and Public Works Committee, as well as representatives of Public Citizen and Earthjustice and other reporters from Politico and S&P Global. At that roundtable, Symons presented an analysis declaring the legislation’s impact on LNG exports reviews alone would be equivalent to that from 165 coal-fired power plants and that it would take roughly 50 large renewable electricity-powered transmission lines to make up the negative climate impacts of the provision.
“Lawmakers should do some deep dive reevaluation and reach out to other outside experts to make sure that they fully understand [this bill],” Tyson Slocum of Public Citizen said at the roundtable.
Manchin’s office did not respond to requests for comment for this story.
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And more on the week’s most important conflicts around renewable energy projects.
1. Lawrence County, Alabama – We now have a rare case of a large solar farm getting federal approval.
2. Virginia Beach, Virginia – It’s time to follow up on the Coastal Virginia offshore wind project.
3. Fairfield County, Ohio – The red shirts are beating the greens out in Ohio, and it isn’t looking pretty.
4. Allen County, Indiana – Sometimes a setback can really set someone back.
5. Adams County, Illinois – Hope you like boomerangs because this county has approved a solar project it previously denied.
6. Solano County, California – Yet another battery storage fight is breaking out in California. This time, it’s north of San Francisco.
A conversation with Elizabeth McCarthy of the Breakthrough Institute.
This week’s conversation is with Elizabeth McCarthy of the Breakthrough Institute. Elizabeth was one of several researchers involved in a comprehensive review of a decade of energy project litigation – between 2013 and 2022 – under the National Environment Policy Act. Notably, the review – which Breakthrough released a few weeks ago – found that a lot of energy projects get tied up in NEPA litigation. While she and her colleagues ultimately found fossil fuels are more vulnerable to this problem than renewables, the entire sector has a common enemy: difficulty of developing on federal lands because of NEPA. So I called her up this week to chat about what this research found.
The following conversation was lightly edited for clarity.
So why are you so fixated on NEPA?
Personally and institutionally, [Breakthrough is] curious about all regulatory policy – land use, environmental regulatory policy – and we see NEPA as the thing that connects them all. If we understand how that’s functioning at a high level, we can start to pull at the strings of other players. So, we wanted to understand the barrier that touches the most projects.
What aspects of zero-carbon energy generation are most affected by NEPA?
Anything with a federal nexus that doesn’t include tax credits. Solar and wind that is on federal land is subject to a NEPA review, and anything that is linear infrastructure – transmission often has to go through multiple NEPA reviews. We don’t see a ton of transmission being litigated over on our end, but we think that is a sign NEPA is such a known obstacle that no one even wants to touch a transmission line that’ll go through 14 years of review, so there’s this unknown graveyard of transmission that wasn’t even planned.
In your report, you noted there was a relatively small number of zero-carbon energy projects in your database of NEPA cases. Is solar and wind just being developed more frequently on private land, so there’s less of these sorts of conflicts?
Precisely. The states that are the most powered by wind or create the most wind energy are Texas and Iowa, and those are bypassing the national federal environmental review process [with private land], in addition to not having their own state requirements, so it’s easier to build projects.
What would you tell a solar or wind developer about your research?
This is confirming a lot of things they may have already instinctually known or believed to be true, which is that NEPA and filling out an environmental impact statement takes a really long time and is likely to be litigated over. If you’re a developer who can’t avoid putting your energy project on federal land, you may just want to avoid moving forward with it – the cost may outweigh whatever revenue you could get from that project because you can’t know how much money you’ll have to pour into it.
Huh. Sounds like everything is working well. I do think your work identifies a clear risk in developing on federal lands, which is baked into the marketplace now given the pause on permits for renewables on federal lands.
Yeah. And if you think about where the best places would be to put these technologies? It is on federal lands. The West is way more federal land than anywhere else in the county. Nevada is a great place to put solar — there’s a lot of sun. But we’re not going to put anything there if we can’t put anything there.
What’s the remedy?
We propose a set of policy suggestions. We think the judicial review process could be sped along or not be as burdensome. Our research most obviously points to shortening the statute of limitations under the Administrative Procedures Act from six years to six months, because a great deal of the projects we reviewed made it in that time, so you’d see more cases in good faith as opposed to someone waiting six years waiting to challenge it.
We also think engaging stakeholders much earlier in the process would help.
The Bureau of Land Management says it will be heavily scrutinizing transmission lines if they are expressly necessary to bring solar or wind energy to the power grid.
Since the beginning of July, I’ve been reporting out how the Trump administration has all but halted progress for solar and wind projects on federal lands through a series of orders issued by the Interior Department. But last week, I explained it was unclear whether transmission lines that connect to renewable energy projects would be subject to the permitting freeze. I also identified a major transmission line in Nevada – the north branch of NV Energy’s Greenlink project – as a crucial test case for the future of transmission siting in federal rights-of-way under Trump. Greenlink would cross a litany of federal solar leases and has been promoted as “essential to helping Nevada achieve its de-carbonization goals and increased renewable portfolio standard.”
Well, BLM has now told me Greenlink North will still proceed despite a delay made public shortly after permitting was frozen for renewables, and that the agency still expects to publish the record of decision for the line in September.
This is possible because, as BLM told me, transmission projects that bring solar and wind power to the grid will be subject to heightened scrutiny. In an exclusive statement, BLM press secretary Brian Hires told me via e-mail that a secretarial order choking out solar and wind permitting on federal lands will require “enhanced environmental review for transmission lines only when they are a part of, and necessary for, a wind or solar energy project.”
However, if a transmission project is not expressly tied to wind or solar or is not required for those projects to be constructed… apparently, then it can still get a federal green light. For instance in the case of Greenlink, the project itself is not explicitly tied to any single project, but is kind of like a transmission highway alongside many potential future solar projects. So a power line can get approved if it could one day connect to wind or solar, but the line’s purpose cannot solely be for a wind or solar project.
This is different than, say, lines tied explicitly to connecting a wind or solar project to an existing transmission network. Known as gen-tie lines, these will definitely face hardships with this federal government. This explains why, for example, BLM has yet to approve a gen-tie line for a wind project in Wyoming that would connect the Lucky Star wind project to the grid.
At the same time, it appears projects may be given a wider berth if a line has other reasons for existing, like improving resilience on the existing grid, or can be flexibly used by not just renewables but also fossil energy.
So, the lesson to me is that if you’re trying to build transmission infrastructure across federal property under this administration, you might want to be a little more … vague.