Friday Focus:Can Congress Chew Gum and Walk At the Same Time?

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THE STATE OF PERMITTING REFORM: Sens. Steve DainesKevin Cramer, and John Hoeven say that Republicans are ready to negotiate on a more comprehensive bill on permitting reform – but with certain lines drawn in the sand.

During an annual meeting for the Basin Electric Power Cooperative, the Midwestern senators urged for some type of permitting reform to pass this Congress – as it’s likely one of the few bipartisan issues that could pass in a divided Washington – and signaled their openness to working with Democrats.

“I think the best opportunity in this divided government that we’ve been talking about is the opportunity to get some permitting reforms, by giving the left a little bit of what they want, and we get a little bit of what we want,” said Cramer during the panel. “Our founders created three co-equal branches of government and bicameral legislature all on purpose.”

Cramer praised the permitting reform that was included in the debt limit deal negotiated between the White House and House Republicans, but asserted that the legislation did not go far enough to be fully comprehensive – stopping short of including judicial reform.

What they want: Cramer and Daines stressed the need for judicial reform to be paired with permitting reform, arguing that the speedy buildout of projects would be inhibited by legal challenges unless changes were implemented.

“As long as you can litigate, you’re going to have problems,” said Cramer. Daines further elaborated on the experience of his state falling into the jurisdiction of the Ninth Circuit Court, which resulted in the court issuing orders halting the Keystone XL Pipeline project. The Ninth Circuit has been criticized as being too large and wieldy, and has taken a relatively more liberal stance than other courts.

Other GOP wants: Republican ranking members of the Senate Energy and Natural Resources Committee and the Environment and Public Works Committee John Barrasso and Shelley Moore Capito introduced legislation in May that features a ban on using the “social cost of greenhouse gases” in regulation and rulemaking, if doing so increases energy costs – which would be an area where Democrats could push back.

What Democrats want: The White House released a proposal earlier this year that includes a focus on expanding the Federal Energy Regulatory Commission and the Department of Energy’s authorities that would make it easier to develop renewables and low-carbon energy. This includes the ability to place interstate transmission and establish cost allocation procedures, implement new FERC rules to speed up generation interconnection queues, establish new minimum interregional transfer requirements, and allow the DOE to use loan authorities granted by the infrastructure package for transmission projects outside of formally designated zones.

The White House has also signaled openness to changes to the National Environmental Policy Act, otherwise known as NEPA. NEPA reforms were later included in the debt limit deal in June, aiming to speed up the permitting process. But at the end of July, the Biden administration released a proposed rule that would require federal agencies executing reviews under NEPA to consider climate and equity factors, which could arguably slow down instead of quicken the process.

However, expanded authority for FERC is a nonstarter for Republicans, where more power to the agency would erode oversight authorities of state public utility commissions. Furthermore, the issue of “cost allocation” could put the burden of paying for transmission buildout on taxpayers – something Republicans have signaled they oppose.

But the bipartisan sentiment is there. In a statement to theWashington Examiner, Senate Environment and Public Works Committee Chair Tom Carper says the committee is still exploring “what bipartisan permitting reforms we can make legislatively as well.”

“We’re seeing a record number of clean energy investments across our nation thanks to the Inflation Reduction Act and Bipartisan Infrastructure Law,” Carper said. “My focus is on ensuring that clean energy projects can connect to the grid without facing unnecessary delays and without undermining our bedrock environmental protections.”

The scheduling issue: Congress is going to be laser-focused on passing spending measures to avoid a government shutdown, with an impending deadline on Sept. 30.House SpeakerKevin McCarthy and Senate Majority Leader Chuck Schumer are coalescing around a stopgap spending bill that would keep the government open through early December – but after that, lawmakers are going to be zoned in on passing a larger spending deal for fiscal year 2024. Whether or not permitting reform gets put into the legislative mix has yet to be seen – but as many Hill denizens have observed, it’s hard for Congress to chew gum and walk at the same time.

From the Washington Examiner, Daily on Energy