The Other Manchin Bill:  Infrastructure Permitting Reform. Republicans’ Counter.

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From the Washington Examiner, Daily on Energy:

THE OTHER MANCHIN BILL: Sen. Joe Manchin is marketing his deal with Majority Leader Chuck Schumer as a major opportunity to tackle infrastructure permitting challenges that he and fellow lawmakers in both parties recognize as inhibitive to growth in the energy sector.

One of the conditions of the deal was that Congress would tackle comprehensive permitting with separate legislation before the end of the fiscal year, and Manchin, who said in announcing the deal last week that Schumer, President Joe Biden, and Speaker Nancy Pelosi are all on board, said yesterday that “total” permitting reform is in order.

“That’s the thing everyone has told me,” Manchin said on NBC’s Meet the Press, recalling conversations with industry. “When I’ve asked them point blank, they said, ‘“If you can just take the leashes off, take the chains off of us, let us go and do it.’”

Changes would be made to enable project developers to “get these projects completed that are needed now,” he said.

Energy Permitting Provisions:

Designate and prioritize projects of strategic national importance.

  • Direct the President to designate and periodically update a list of at least 25 high-priority energy infrastructure projects and prioritize permitting for these projects.
  • Require a balanced list of project types, including: critical minerals, nuclear, hydrogen, fossil fuels, electric transmission, renewables, and carbon capture, sequestration, storage, and removal.
  • Criteria for selecting designated projects includes; reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade with our allies.

Set maximum timelines for permitting reviews, including two years for NEPA reviews for major projects and one year for lower-impact projects.

  • Require a single inter-agency environmental review document and concurrent agency review processes.
  • Designate a leady agency to coordinate inter-agency review.
  • Expand eligibility for the Federal Permitting Improvement Steering Council streamlining and transparency programs to ensure smaller energy projects, critical minerals and mining, and other key programs can benefit from FPISC. Provide FPISC funds to accelerate permitting.
  • Improve the process for developing categorical exclusions under NEPA.

Improve Section 401 of the Clean Water Act by incorporating improvements from both the Trump and Biden administrations.

  • Require one of four final actions withing one year of certification requests: grant, grant with conditions, deny, or waive certifications.
  • Clarify that the basis of review is water quality impacts from the permitted activity, based on federal, State, and Tribal standards.
  • Require certification applications to include available information on potential water quality impacts.
  • Prohibit State or Tribal agencies from requesting project applicants to withdraw applications to stop/pause/restart the certification clock.
  • Require States and Tribes to publish clear requirements for water quality certification requests, or else default to federal requirements.

Address excessive litigation delays.

  • Set statute of limitations for court challenges.
  • Require that if a federal court remands or vacates a permit for energy infrastructure, the court must set and enforce a reasonable schedule and deadline, not to exceed 180 days, for the agency to act on remand.
  • Require random assignment of judges for all federal circuit courts.

Clarify FERC jurisdiction regarding the regulation of interstate hydrogen pipeline, storage, import, and export facilities.

Complete the Mountain Valley Pipeline. Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction over any further litigation.

SENATE REPUBLICANS’ PERMITTING COUNTER PROGRAMMING: Senate Republicans are posing a “test” to their Democratic colleagues to gauge where they fall on reforming federal permitting processes for infrastructure projects, one of Sen. Joe Manchin’s conditions for supporting the new reconciliation deal.

Several Republicans were out this morning marketing Sen. Dan Sullivan’s Congressional Review Act resolution to formally oppose the Council on Environmental Quality’s rollback of Trump NEPA reforms.

The White House issued the final rule in April, which in part directs agencies overseeing environmental reviews to consider the direct, indirect, and cumulative impacts of a given project on the environment, whereas the Trump rule limited the scope to “reasonably foreseeable” impacts.

The Republican members criticized the rule changes, arguing they will slow the permitting and construction of projects of all types, from roads to renewable energy projects and power transmission lines.

Sullivan said the White House is “at war with itself” between its environmental regulations and its support for more project building.

“The president touts as one of his biggest achievements the bipartisan infrastructure bill that a number of us supported last fall, and then they come up with a NEPA rule that undoubtedly will make it harder to deploy the capital to build infrastructure,” Sullivan said.

The infrastructure law included language of its own to reform permitting, including a provision establishing a goal for agencies to complete environmental impact statements within two years and environmental assessments within one year. CEQ’s rule runs counter to those reform provisions, the Republican members said.

On the other hand: The White House maintains that its reforms will lead to faster project completion. When the rule was announced, CEQ Chair Brenda Mallory said it would ensure that projects “get built right the first time.”

A number of projects have been delayed and held up in the courts where judges rule that agencies failed NEPA obligations by failing to sweep widely enough when considering the impacts of a given action.

At the Federal Energy Regulatory Commission, Chairman Richard Glick made note of this fact in March while defending FERC’s decision to more rigorously consider the effects on climate change when contemplating a given gas pipeline infrastructure. Doing so would help avoid time-consuming litigation, he said.

“I think developers of energy infrastructure would agree that when regulatory agencies ignore traditional directives or cut corners, the courts typically vacate the permits and send the agencies back to the drawing board,” Glick told the Senate Energy and Natural Resources Committee at the time. “This often adds a significant amount of time and hundreds of millions, if not billions, of dollars of additional cost onto a project.”