May 21, 2023

Democratic Senators Add Another Permitting Proposal To The Mix

Last week, Sens. Tom Carper (D-Del.) and Brian Schatz (D-Hawaii) announced they are working on a permitting proposal that focuses on renewable energy and transmission lines.

While full details have not yet been released, the bill reportedly includes a two-year environmental review timeline, which is similar to the timeline written into bills introduced by Republican lawmakers and Sen. Joe Manchin (D-W.Va.). Sens. Carper and Schatz’s bill would differ from those proposals by prioritizing projects that reduce emissions. Specifically, the GOP plan would expand fossil fuel production and accelerate the approval process for most energy and infrastructure projects while Sen. Manchin’s bill would:

  • Set maximum timelines for permitting reviews and, if deadlines are missed, allow project sponsors to seek a court order directing agencies to finish reviews;
  • Require a single inter-agency environmental review coordinated by lead agency and concurrent agency reviews for other authorizations;
  • Establish page limits on environmental documents;
  • Expand eligibility for the Federal Permitting Improvement Steering Council streamlining programs to include smaller energy projects, critical minerals and mining, and other programs;
  • Improve the process for developing categorical exclusions;
  • Set a 150-day statute of limitations for court challenges;
  • Require courts to set litigation of energy project permits for expedited consideration;
  • Require that if a federal court remands or vacates a permit, 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;
  • Require public reporting and a public comment opportunity on consent decrees and settlement agreements seeking to compel agency action affecting energy and natural resources projects;
  • Designate and prioritize projects of strategic national importance;
  • Direct the U.S. 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, along with carbon capture, sequestration, storage, and removal; and
  • Establish criteria for selecting designated projects such as reducing consumer energy costs, improving energy reliability, decarbonization, and promoting energy trade with our allies.

The U.S. permitting system is fundamentally broken and is delaying the investments the country desperately needs. For example, it takes:

  • 5 years to get a permit for roads or bridges;
  • More than five years to get a permit for public transit;
  • Nearly eight years to get a permit for a port; and
  • More than 10 years to get a permit for an electric transmission line.

As Connecting the Dots reported in March, MSCI signed onto letters with the U.S. Chamber of Commerce (USCC) and the National Association of Manufacturers supporting permitting reform that would:

  • Consolidate permitting processes — with enforceable deadlines — for the siting of new energy projects and their infrastructure;
  • Speed up the approval process for transportation-infrastructure projects;
  • Commit to developing our resources to strengthen U.S. supply chains for the critical minerals vital to national security; and
  • Ensure the federal government’s executive branch follows congressional intent on all streamlining efforts, including the One Federal Decision, an approach that seeks to expedite certain federal environmental reviews.

Both Republicans and Democrats continue to indicate their support for including federal permitting process reform in legislation that also would raise the federal debt ceiling. While it is clear significant differences remain between the Republican and Democratic approaches, we are hopeful those differences can be bridged in time to include a permitting reform package as part of a debt limit agreement. Stay tuned to Connecting the Dots for more information.

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