Permitting reform details released with help for Mountain Valley Pipeline
Details have been released on a deal among Democrats to support federal reform of energy infrastructure permitting this fall as a follow-up to the $739 billion budget bill on energy and climate issues.
The follow-up or companion bill, negotiated primarily by Sen. Joe Manchin (D-W.Va.) and Senate Majority Leader Chuck Schumer (D-N.Y.), would notably include a push for completion of the Mountain Valley Pipeline, a natural gas transmission project originating in Manchin’s home state.
No other specific project is named in the summary details, although the history of blocked oil and gas pipeline projects in recent years could provide an illustrative list of the difficulties of infrastructure permitting.
According to Manchin, President Biden and House Speaker Nancy Pelosi (D-Calif.) agreed along with Schumer to support the permitting bill in the fall, partly in return for Manchin agreeing to vote for the expensive budget bill, which includes extensive subsidies for renewable energy and higher costs for oil and gas projects (OGJ Online, July 28, 2022).
Whether the leaders can corral enough Democrats and Republicans in both houses of Congress to pass a permitting reform bill—especially over the resistance of environmental advocates—is an open question.
Mountain Valley Pipeline
A summary of the deal on infrastructure permitting says the bill should “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.”
The proposed 302-mile gas pipeline, described as 94% complete by Equitrans Midstream Corp., the lead developer, has been stalled by litigation. A three-judge panel of the US Court of Appeals for the Fourth Circuit has agreed with activist litigants on the need for more environmental analyses, especially to satisfy the Endangered Species Act.
The same three-judge panel also blocked another gas pipeline project, the Atlantic Coast Pipeline, but was overruled by the Supreme Court shortly before developers gave up on the long-stalled project (OGJ Online, July 6, 2020).
Transfer of litigation on the Mountain Valley Pipeline to the US Court of Appeals for the DC Circuit would not guarantee a better result. The Fourth Circuit panel included two judges chosen by President Obama and one originally chosen by President Clinton—and the DC Circuit is well-stocked with Obama and Clinton choices.
Streamlining goals
The deal on a permitting bill also envisions time limits on permitting reviews, including a limit of 2 years for National Environmental Policy Act (NEPA) reviews, and a statute of limitation on court challenges.
The deal also would address the Clean Water Act Section 401 requirement that a pipeline or other project must receive a Clean Water Act Section 401 water quality certification from a state. The agreement for the follow-up bill is that states must be required to have clear water quality requirements and that they must be limited to water quality, not broader environmental concerns.
The bill would set time limits for state actions on permitting of interstate infrastructure.
The administration would be required to designate and periodically update a list of at least 25 high-priority energy infrastructure projects and prioritize permitting for them. Criteria for the list would include reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade.