Text of the debt ceiling deal (a.k.a. the Fiscal Responsibility Act) has been released. Pages 71–98 deal with permitting reform. I've summarized them in our permitting reform proposals Google Doc and Spreadsheet.
It contains some good provisions that I discussed on the permitting reform proposals comparison training page (CCU recording available under the Watch tab, and below). For example, when multiple federal agencies are involved in the permitting of an energy project, it would have them designate a lead agency, and all agencies would work together on a single environmental review document rather than each agency creating duplicative work. One item missing here that I've discussed is establishing a dispute resolution process when the agencies disagree about something.
It sets time and page limits on environmental assessments and impact statements (1 and 2 years, respectively). I'm not a fan of page limits, because especially when there's a time limit set, the document size really doesn't matter. But it's not a big deal. Federal agencies will be allowed to extend the deadlines in coordination with project applicants is necessary, which as I discussed in the CCU is very important, so it's great that was included:
It also allows project applicants to choose to write environmental documents themselves, then agencies review them and take responsibility for their accuracy. Personally I've done this in as a private sector environmental consultant, and it can save a ton of time on a project (consultants generally work must faster than regulators), so I like this provision. The bill would also start the process of creating an online NEPA permitting portal, which would be great for project transparency.
Those are all provisions taken and modified from the BUILDER Act, and they all look good to me. But the only item on the critical question of accelerating electrical transmission lines simply directs a study and report to identify prudent steps to add transmission interconnections between regions. That's not nearly enough. The bill would also add energy storage projects to those potentially qualifying for the FAST-41 process, which is a good idea.
In its most controversial provision, the bill claims Mountain Valley Pipeline (MVP) is in the national interest (and that it would reduce climate pollution) and authorizes its completion. That's pretty awful. While the MVP is just one project that's already 90% built and might have ultimately been authorized anyway, this decision reminds me of the Supreme Court in last week's Sackett v. EPA case effectively overruling Congress on a legislative question and rewriting the Clean Water Act. The judicial branch is only supposed to interpret laws, not rewrite them. That's Congress' job. Similarly Congress is supposed to leave environmental permitting lawsuits up to the judicial branch. Here, Congress is bypassing the judicial branch in authorizing MVP with a bogus justification. They shouldn't be doing that. Stay in your lanes, branches!
Overall, the debt ceiling package has a lot of good provisions that will help streamline the clean energy permitting process. It's not enough – we still need to boost transmission projects, improve early community involvement, and there are a number of other provisions that both sides of the aisle will want to see in a bigger permitting reform package later this year. But most of the clean energy permitting reform provisions in this bill are a good start. Also, in Wednesday's Weekly Briefing, CCL will provide more information from an organizational lens, so stay tuned!
FYI, the largest group of moderate Democrats in the House is the New Democrat Coalition. They announced their priorities for permitting reform. I know CCL doesn't take a position on announcements from partisan groups like the New Dems but if your Member is a member of the New Dems, it would be good to be aware of what they are asking for as you go to lobby them on permitting reform.
Thanks @Alaina Coppa for the great clarifying question! Having recently heard from Ben and our DC team today, I know that they do plan on updating the primary ask sheet once it's confirmed what is in the debt ceiling bill has passed. Overall, our focus areas for the June lobby meetings will remain clean energy permitting reform and carbon pricing and any additional context/specificity in the asks will be sure to be reviewed here on CCL Community as well as their sessions at the June conference.
Thanks for clarifying, @Brett Cease.
@Mike Kelly, that's a good list of items. Many of the provisions in their #1 are included in the debt ceiling deal. The rest are not and I hope members of Congress will continue to push for their inclusion in a more comprehensive future clean energy permitting reform package.
Thanks @Kathy Seal. Caveat that I'm speculating a bit here because groups in opposition haven't been very clear about their objections to the NEPA reforms, but I think it's because for some organizations, a slow NEPA permitting process is the tool they rely on to stop fossil fuel infrastructure projects. So I think they just don't want to streamline NEPA for that reason. I think they just care less about making it easier to build clean energy infrastructure, because that's not what they focus on. This is part of what I talked about in the recent permitting CCU – that we need to shift our mindset from one focused on stopping fossil fuel infrastructure to one more focused on speeding up the build-out of clean energy infrastructure:
But again, that's just my speculation. I'd like to hear some more specific critiques about what they don't like, but so far all I've seen are general objections to putting time and page limits on environmental assessments and impact statements without explanation about why that's a bad thing (our position is that it's good as long as regulatory agencies have the option to extend the deadlines when needed, which was indeed included in the deal).
@Dana Nuccitelli your speculation sounds very reasonable to me.
One note: though time limits could do a lot to streamline permitting, I don't see page limits as having any practical effect.
My understanding (which could be wrong) is that the page limits would pertain to the body of the EIS, but not to appendices. Appendices are where the detail (and length) already reside in these giant documents. For example, in the EIS for the Keystone XL pipeline, my former company wrote the analysis of the life-cycle GHG effects of using the Canadian oil-sand crude (which would have been transmitted by the pipeline) rather than other crude oil in US refineries; our appendix was scores of pages longer than the corresponding section of the report.
If page limits are imposed on specific sections of the EIS, more of the text could easily be shifted out of the body of the report to the appendices, unless they're page limited too. Streamlining, no; shape-shifting, yes.
@Randall Freed This is a good point and thanks for sharing your own personal expertise here. It can be challenging to boil down really complex analysis to a focused set of pages. I’m reminded of Mark Twain’s comment, “Sorry to write such a long letter — I didn’t have time to write a short one.”
Yes I agree that the page limits won't have much effect, and you're right that they don't apply to appendices (which are often massive), @Randall Freed.
@Michael Jefferies, I think efforts to speed up NEPA permitting like time limits would help transmission lines somewhat. But that applies to federal permitting, whereas big interstate transmission lines are often slowed by the permitting process in multiple individual states. So while it should help a bit, there's still a lot more we need to do to speed up the transmission build-out.
In case it's helpful for anyone, here's the link to our public statement from CCL. We're using this opportunity to emphasize our grassroots power and highlight our June lobbying on this issue:
Excellent analysis. I have one concern you don't mention: allowing the Project Developer to write an environmental impact statement that the agencies can accept or adjust. This would speed the process. However, a Project Developer would commission the scientist with an eye towards justifying the project, not unbiasedly evaluating the environmental impacts. Even if independent scientists are commissioned to do the study, they will find out who would be willing to bias reports towards the client's wishes and choose them. There's even the possibility that a Project Developer can commission an environmental impact study and, if he doesn't like the results, not show it to the fed agencies but commission another one. Too many fossil fuel companies have shown their willingness to engage in unethical pursuits, including misinformation campaigns, to not take this possibility seriously.
Just adding a thank you to @Dana Nuccitelli for reading and analyzing the bill, to everyone here for discussing it, and also to @Elinor Sparks and the GL call for bringing it to my attention and in the follow up email. I was looking for a blog post yesterday not a forum post :-) (So adding thank you to @Flannery Winchester for linking the blog post.)
Although the Sierra Club uses the phrase, “gut the NEPA,” I think that's overstating it. It does have a couple of things that weaken the NEPA. The Sierra Club wants to stop bad projects and NEPA is central to that process. The fossil fuel industry has wrecklessly disregarded harmful effects of their operations on the nearby environment and people. They repeatedly break clean air and clean water laws counting on either lack of enforcement or fines that are cheaper than fixing the problem. An excellent legal analysis of the effects of the provisions in the Fiscal Responsibility Act (debt relief bill) can be read here:
Thanks, @Robert Hendricks. I did mention that provision:
It also allows project applicants to choose to write environmental documents themselves, then agencies review them and take responsibility for their accuracy. Personally I've done this in as a private sector environmental consultant, and it can save a ton of time on a project (consultants generally work must faster than regulators), so I like this provision.
My experience was as an environmental scientist doing analyses and reports for a contractor hired by a client cleaning up and redeveloping a Superfund site. My company and client's motivations were admittedly very profit-driven (i.e. trying to do the minimal amount of cleanup we could get away with), although my personal motivations of course included protecting human and environmental health 🤓
Our regulatory agency oversight was very thorough, and ensured that we accomplished that sufficiently protective cleanup. Regulators are generally pretty good at that, and it's their primary motivation. While the debt ceiling bill allows actors with ulterior motives to write the environmental documents, it also requires regulatory agencies to review them and bear responsibility for their accuracy. I think that will work and will expedite the process while also reducing burdens on agencies, because it's much easier to review documents than to draft them, as noted in the Legal Planet analysis you reference. So, personally I like this provision.
Thanks for the excellent summary. One topic that doesn't appear in this legislation or in CCL's permitting reform discussions relates to approval for projects to supply materials to assist with an energy transition. Has CCL taken a stance on projects to recyce and refine the needed materials?
Hi @Stephen James. There are some proposals specific to accelerating the permitting process for mines. If you search the permitting proposals summary doc for “mining” you can get an idea about what some of them are. Those aren't included in the debt ceiling deal, though permitting of big projects will generally tend to benefit from the NEPA streamlining reforms that are in the deal, discussed above. I don't think minerals recycling particularly needs permitting reform – that industry already seems to be growing pretty fast!
Thanks for the prompt reply. I should have also asked if CCL has taken a stance on any of the proposals for mining permit reforms.
I beleive that the United Sates has a good start for lithium-ion batteryr recyclig but is woefully short of capcaity for the other materials needed to suppot he energy transiton. I retired after 42+ years in the metals and minerals industry and witnessed a decine in our ability to process and refine common materials except steel.
@Dana Nuccitelli It seems to me that once the dust settles and the Senate passes the Default avoidance bill, there will be great opportunities to explain this in op eds, right? Critical to avoid angering progressives on the MVP issue, but that may not be hard. It is valid to point out that the way the bill bypasses local communities in imposing the MVP by fiat is the opposite of how permitting reform should be handled, of allowing local communities to participate in the decision process. But readers also need to be informed that the defaul compromise does not do enough to set up procedures for construction of electricity transmission lines from wind and solar.
Hi @Chris Wiegard. Yes I agree this could be a good op-ed op-portunity. Especially in explaining what was included and what was excluded that still needs to get done in a more comprehensive permitting reform package. I think that will be the big question for those who have any interest/knowledge of the topic – is permitting reform done now?
I'm not sure if a discussion of MVP would be necessary. I view it as an item that got tacked on under the cloak of permitting reform, but is really a separate issue. But that's an op-ed judgment call.
@Dana Nuccitelli Thanks much! On the one hand I feel like the MVP approval is a great example of the wrong way to handle permits: impose a project while shutting out the local communities. But your point is excellent: the MVP is no longer a decision to be made and we should be talking about what we need to do now, not what has already been done.
I concur with your concern. I think there are two aspects of the process that ameliorate the risk. First, the strength of agency staff doing the environmental review remains important. It is an unbalanced process in that the quantity and quality of resources a company can bring to an EIS exceeds what is usually available within a government agency to carry out review.
Second, the process for review of the submitted EIS in terms of opportunity for public intervention is critical. I'm not familiar with the applicable Administrative Procedures Act or NEPA provisions but it is most important to allow reasonable time for external public review. As long as the opportunity for communities, NGOs (NRDC, EDF, etc.) and interested parties to comment or initiate legal challenges remains available, the risk of purchased analyses should be low.
Good points. I still have some concern that agencies will be overburdened and public comment will be too short to fully review the document although the Sierra Club is looking for problems with environmental impacts of projects fairly closely. Having public notice early in the process would also help.
@Dana Nuccitelli Dana, thank you for your analysis. Those of us in the chapters rely on your expertise.
Have you seen The American Prospect's take on permitting reform in the debt ceiling bill? American Prospect is a well-respected but partisan (Democratic) leaning publication. What concerns me about this article is it says that Republicans got most of their permitting reform wish list items in the debt ceiling bill, thereby “killing leverage for a broader deal.”
As Dana Johnson, senior director of strategy and federal policy for WE ACT for Environmental Justice, told the Prospect: "I’m not sure that we have a bargaining chip and I’m not sure that anyone will come back to the table and work on a stand-alone [permitting reform] bill … There is no incentive."
Be that as it may, it may just mean we may have to be more vocal than ever in lobbying for bipartisan permitting reform that includes the provisions we believe are critical.
Hi Dana, Thank you so much for your expert analysis. You have our backs!
I have a question about whether this issue you brought up in the Advanced Permitting webinar is addressed in the debt ceiling bill:
“Geothermal and nuclear plants, are less burdened by land requirements, but a federal database lists 11 special permit requirements that apply solely to geothermal facilities and two that apply to nuclear plants, while Small oil and gas drilling projects on public lands have received categorical exclusion from NEPA environmental reviews since 2005.”
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