Pending catastrophe, the most important environmental policy debate in Washington this year will be about a set of questions that have come to be known as “permitting reform.”
Essentially, the government is poised to change the laws and procedures that govern how it approves new infrastructure, from highways to subways, wind farms to oil pipelines. The outcome of the debate will alter how America fights climate change and builds clean energy — and whether it further embraces fossil fuels.
Some of the oldest ideas in American environmental law are up for grabs. For the first time in decades, both parties want something to change about the country’s permitting process: Republicans want to
loosen federal environmental reviews; while Democrats want to simplify and speed up how new electricity transmission is built, which would inherently boost renewables. That should make a deal possible — and indeed, lawmakers have entertained striking a bargain in a deal to raise the debt ceiling.
Yet permitting reform is unusually hard to follow. As of May 2023, at least six different bills are floating around Congress:
House Democrats, Senate Democrats, House Republicans, and Senate Republicans have each proposed a bill (or two), as has Senator Joe Manchin of West Virginia, a key moderate who leads the Senate’s energy committee. Each of these bills consists of dozens of unique policies and proposals, and their goals range from hastening the end of oil to rejuvenating fossil fuels.
Below we’ve compiled a cheat sheet on some of the biggest questions in the 2023 permitting-reform debate without getting into the weeds of each separate bill. We’ll update it as the process continues.
Where to put new power lines
Officially called: Transmission siting and cost allocation
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What’s the problem?
It’s really hard to build new power lines in the United States — especially the kind of long-distance, high-voltage power lines that can move electricity across the country.
Why is that bad?
Because a shortage of power lines is holding back America’s renewables revolution. With a bigger, more interconnected grid, you can link the country’s windiest, sunniest areas to its power-hungry cities and suburbs, and balance out electricity demand across regions.
What’s a number you’ll hear?
If America doesn’t double its rate of power-line construction, then 80% of the carbon benefits from Biden’s climate law will be lost, according to an analysis from Jesse Jenkins, a Princeton engineering professor.
Why is it happening?
Building a new transmission line requires getting approval from dozens of organizations along a proposed route, including every city, county, and state government. (Building a pipeline is much easier.) And utilities along the route have to agree about how to divide up its costs.
What do Democrats want?
They want to give the Federal Energy Regulatory Commission, a bipartisan panel usually called FERC, the authority to decide where new interstate power lines should go and who should pay for them. (FERC already has that power over natural-gas pipelines.)
Democrats also want FERC to require each region to have a baseline amount of transmission with its neighbors, and to open an office that will manage and coordinate new transmission projects.
What do Republicans want?
They haven’t proposed much, although the Senate GOP’s bill would prevent a president from blocking a cross-border pipeline or transmission line — a not-so-veiled attempt to help fossil fuels and avert another Keystone XL debacle.
What does Joe Manchin want?
His proposal would let FERC approve a new power line — but only if a state government has already blocked it for a year or more. He also wants FERC to set rules about who pays for a transmission project.
How to hook up new renewables to the grid
Officially called: Interconnection queue reform
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What’s the problem?
Every new power plant or renewable project has to enter the “interconnection queue” — effectively, a waiting list to get plugged into America’s jammed and overloaded power grid.
Why is that bad?
Because it keeps the grid from decarbonizing. The longer that new clean-energy projects have to wait in line, the longer that existing, dirty energy sources provide most of our electricity.
What’s a number you’ll hear?
It now takes about four years for new projects to clear the interconnection queue, and more than 75% of renewable projects get canceled before they get to the front of the line.
Why is it happening?
At root, it’s because America doesn’t have enough power lines. But it’s also because in some places where the grid is clogged, utilities will force a wind or solar developer to pay not only for their own grid hookup, but also for crucial upgrades across the power grid — even those hundreds of miles from a project. That’s partially because the interconnect rules were written for companies building big coal and nuclear plants, not smaller renewable farms.
What do Democrats want?
They want FERC to issue some ground rules about who can pay for grid upgrades, so that utilities can’t force renewable developers to foot the entire bill for them.
What do Republicans want?
They haven’t proposed anything.
What does Joe Manchin want?
He hasn’t proposed anything.
How long the government can take to approve a project
Officially called: NEPA deadlines and page limits
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What’s the problem?
Before a federal agency can build, approve, or change almost anything — whether it’s authorizing a space port or banning cars from a road in a city park — it must study how that action will impact the environment. It also must seek public comment and publish alternatives to its plan.
These studies, which are required by the National Environmental Policy Act (NEPA), can run thousands of pages long and take years to finish.
Why is that bad?
It’s not … depending on who you talk to. NEPA doesn’t require that the government actually change anything because of its study; only that it publishes it and seeks public comment. While environmentalists can’t use NEPA to block a polluting project, they can sue the government to get it to add information to an environmental-impact report, which can sometimes delay a project long enough for it to get canceled.
Some environmentalists say that NEPA is an important tool to waylay fossil-fuel development. (It’s how activists delayed the Dakota Access Pipeline for a year or so.) But others say that NEPA is now mostly slowing down the green transition, and that it has given “corporate interests and rich NIMBYs” a veto over rapid climate action.
What’s a number you’ll hear?
It takes 4.5 years on average to finish an environmental-impact statement, the most stringent kind of NEPA review — but that’s an average. The NEPA review of renovations to Washington, D.C.’s main public-transit hub has taken eight years and counting.
Why is it happening?
When NEPA was first passed in 1969, supporters believed that it would give Americans an expansive new right to a healthy environment. Liberal lawyers hoped that NEPA might reorient all of federal policy in a greener direction, like the Civil Rights Act did for race and gender discrimination a few years earlier.
That didn’t happen. By the mid-1970s, the court system had hemmed in NEPA, turning it into a paperwork mandate, not a substantive right. That means NEPA lawsuits — of which there are more than 100 every year — feature a lot of bickering over procedural details.
What do Democrats want?
Senate Democrats would impose a one-year deadline for light NEPA reviews and a two-year deadline for the most stringent reviews — but those deadlines would only apply to projects that fight or adapt to climate change, and there would be no penalty for missing them. The House bill asks the White House to write new rules for NEPA studies.
What do Republicans want?
The GOP would require one- and two-year deadlines for NEPA studies, but for all types of projects, not just those related to climate change. If an agency missed those deadlines, then under the Senate GOP bill, the project being studied would immediately and irrevocably get approved. (The House GOP, meanwhile, would charge the offending agency a fine.)
Republicans would also impose a 300-page limit on NEPA studies for complex projects and a 150-page limit on most projects. Today, the average NEPA study is more than 500 pages long.
What does Joe Manchin want?
He’s proposed the same page limits and deadlines as Republicans, but with weaker penalties and no automatic approval.
Whether federal agencies can think about climate change
Officially called: Greenhouse gas considerations in the NEPA process
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What’s the problem?
Technically, NEPA doesn’t require that agencies look into whether a proposed federal project would worsen climate change. The Biden administration has required agencies to take it into account, but that could be reversed by a future administration.
Why is that bad?
It’s a little silly that the government would write a 500-page report about a project’s environmental impact — but not say anything about its carbon emissions.
Why is it happening?
Because every administration — and every agency — implements NEPA in a different way. The courts also set some ground rules about what a NEPA study must include, but the extremely conservative Supreme Court is unlikely to require NEPA studies to include climate effects anytime soon.
What do Democrats want?
They want to require agencies to consider a project’s impact on the climate, including whether not doing the project would raise emissions.
What do Republicans want?
House Republicans want to block agencies from considering climate change — or any negative environmental impacts more than 10 years in the future — when preparing a NEPA study.
Senate Republicans would also forbid FERC from considering whether any project would raise or lower emissions.
What does Joe Manchin want?
He hasn’t proposed anything.
Whether permitting lawsuits should have a deadline
Officially called: NEPA statute of limitations, the permitting litigation process
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What’s the problem?
NEPA fights never end. Americans generally have up to six years to sue the government over a NEPA study, and the ensuing court battles can take years to resolve.
Why is that bad?
Depends on who you ask. The lack of a deadline can create an aura of uncertainty around public projects: Years after a federal agency approves an infrastructure project (including a clean-energy project), that project can still be challenged and blocked in court — even if construction on it has already started.
For some progressives, that doesn’t seem so bad, because it lets environmental lawyers drag fossil-fuel companies into lengthy NEPA lawsuits over proposed pipelines or refineries. But other progressives argue that most new energy projects will be zero carbon anyway, so NEPA fights allow conservatives and NIMBYs to veto clean energy.
Why is it happening?
Because Congress didn’t envision the modern permitting process when it first passed NEPA, and the law doesn’t contain a statute of limitations.
What do Democrats want?
Senate Democrats want to impose a three-year limit on bringing a NEPA lawsuit, and they’d immediately elevate a NEPA suit to the local federal appeals court. House Democrats haven’t proposed anything.
What do Republicans want?
Republicans in both chambers want to add a three- or four-month statute of limitations to NEPA. Senate Republicans would go further and require the courts to rule on any NEPA case within six months. These litigation deadlines could sharply limit environmentalists’ ability to fight fossil-fuel infrastructure.
What does Joe Manchin want?
His bill would add a five-month statute of limitations to NEPA.
Whether there are enough federal employees to approve new projects
Officially called: NEPA understaffing, permitting hiring authority
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What’s the problem?
The federal offices that handle most of the NEPA-related paperwork don’t have enough employees and suffer high staff turnover, which slows down their ability to quickly finish the easiest studies.
Why is that bad?
According to some progressives, a lack of funding for the agencies that implement NEPA is the biggest driver of permitting-related slowdowns. They argue that the most common kind of NEPA studies are completed in a year or so, and that only the most stringent NEPA studies regularly drag on. (Plenty of federal actions, such as building a new train station or transmission line, require a stringent NEPA study.)
What’s a number you’ll hear?
When legal scholars at the University of Utah looked at 41,000 NEPA decisions of all kinds made by the U.S. Forest Service, they found that most delays were caused by agency understaffing, turnover, or delays in getting information from applicants. They also blamed unstable budgets, inadequate technology, and conflicting guidance from other laws, such as those governing historical preservation.
Why is it happening?
A decade of federal cost-cutting, among other reasons. The Department of the Interior lost 6% of its staff during the Trump administration and has only gained 2% since. FERC has also struggled to hire qualified workers.
What do Democrats want?
Senate Democrats would make every agency identify its NEPA workforce needs annually and then give it the power to hire accordingly. House Democrats would let FERC pay people more than normal federal law allows.
What do Republicans want?
House Republicans would require the National Park Service, the Bureau of Land Management, and the U.S. Forest Service to prepare an outreach plan for hiring new permitting employees.
What does Joe Manchin want?
He’s proposed allowing FERC to exceed the federal payscale, too.
Whether it’s easy — or possible — to build new geothermal power plants
Officially called: Geothermal permitting, geothermal parity in the NEPA process
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What’s the problem?
New geothermal plants could generate a huge amount of zero-carbon electricity. Yet securing a permit to install a geothermal plant on federal lands — where the richest geothermal resources exist — can take years.
Why is that bad?
Because it’s comparatively easy to drill for oil and natural gas on federal land: Oil and gas drilling is categorically exempt from parts of NEPA, and a special office in the Bureau of Land Management handles fossil-fuel permits. So even though geothermal firms use the same equipment as oil and gas companies — but don’t create the same carbon emissions — it is much harder to drill for geothermal energy, and therefore much more expensive.
What’s a statistic you’ll hear?
About 90% of “viable geothermal resources” — places where it makes sense to drill for Earth’s heat — are located on federal lands in the West. This isn’t parkland, to be clear, but government-owned land now used for ranching, hunting, mining, or recreation.
Why is it happening?
Because geothermal is a new industry. Until recent improvements in drilling, geothermal only made sense in a few parts of the country. Now it could be used more widely.
What do Democrats want?
Senate Democrats want the Interior Department to make sure geothermal drilling permits are handled in the same way that oil-and-gas drilling permits are.
What do Republicans want?
House Republicans would exempt some geothermal projects from having to get permits at all. And Senate Republicans would tell the Interior Department to defer to state law when granting new geothermal permits.
What does Joe Manchin want?
While supportive of geothermal power, he hasn’t proposed anything on this issue.
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