Manchin unveils details of proposed permitting reform for energy infrastructure

Sen. Joe Manchin (D-W.Va.) has released the details of permitting reforms for energy infrastructure, especially pipelines, that he worked out in negotiations with his party’s congressional leadership and the White House.

Even before release of the legislative language, Manchin’s strategy received sharp criticism from Republican leadership who argued it didn’t go far enough and liberal Democrats who argued it went too far. The senator reacted to those criticisms as he released his proposals Sept. 21.

“I’ve never seen stranger bedfellows than Bernie Sanders and the extreme liberals siding with Republican leadership,” Manchin said. “In the Democratic caucus, I’ve never seen this happen.”

Senate Majority Leader Chuck Schumer (D-NY) has said the permitting reform plan will be added to a continuing resolution needed to extend funding of the federal government beyond the Sept. 30 end of the current fiscal year.

That means Congress now has only a week to debate the reforms and make a decision—or Congress can watch funding run dry in October for lack of a continuing resolution. The continuing resolution is a stopgap measure until fuller appropriations legislation for fiscal 2023 can be completed.

Stronger opposition to the reforms exists in the House, but House Speaker Nancy Pelosi (D-Calif.) has agreed to support the plan, as has President Biden. Environmental activists have been vocal in their opposition, partly because Manchin is trying to force completion of the Mountain Valley Pipeline, a natural gas pipeline originating in West Virginia.

Faster work wanted

Manchin’s plan, in the form of a proposed Energy Independence and Security Act of 2022, would speed up the permitting work of federal agencies through deadlines and other obligations, following the approach of a 2015 highway bill signed into law by President Obama.

Federal agencies would be obligated to better coordinate their work on a project, under the guidance of a designated lead agency. An effort would be made to drain some of the redundancy out of successive environmental reviews, and project opponents would be given 150 days to file a lawsuit. The plan explicitly says these measures would not preempt environmental laws.

The administration would be obligated to designate 25 energy projects for priority federal review and to update the list every 180 days. The list would need to include projects involving fossil fuels, non-fossil fuels, carbon capture, electric transmission, hydrogen, and critical minerals.

Water quality and states

Manchin also wants to deal with states that block pipelines by withholding state certification that a pipeline will not cause violations of state water quality standards. Such certifications are required by the Clean Water Act.

Manchin’s plan would require that states clarify the scope of their Clean Water Act review and make final decisions within 1 year. States would be required to publish clear requirements for water quality certifications or default to federal requirements.

Critics have said states in some cases have withheld certifications not because of genuine water quality concerns but because of issues such as climate change.

Mountain Valley Pipeline

Manchin has been especially aggrieved that completion of the Mountain Valley Pipeline project has been delayed for years. The 302-mile pipeline would carry up to 2 bcfd of natural gas from the senator’s home state to southern Virginia.

Manchin’s legislation would require federal agencies to issue all approvals and permits needed for the pipeline without further delay. More specifically, it would require such regulatory actions as rights-of-way and Endangered Species Act assessments (called biological opinions) to be issued in 30 days in substantially the same forms as previously approved.

Those regulatory actions would not be subject to judicial review—an unusual strategy for taking federal judges out of the picture on technical details. To the extent that more court action is attempted, the cases will have to be reviewed in the US Court of Appeals for the District of Columbia Circuit, not the Fourth Circuit.

Challenges to the Mountain Valley Pipeline and, in a similar case, to the Atlantic Coast Pipeline have tended to end up before the same three judges in the Fourth Circuit. They have generally ruled in favor of environmental activists in the cases. Their last ruling against the Atlantic Coast Pipeline was overruled by the US Supreme Court in a 7-2 vote, but that project’s backers subsequently gave up (OGJ Online, July 6, 2020).

The Mountain Valley Pipeline, an Equitrans Midstream Corp. project, will not necessarily find judges in the DC Circuit more favorably inclined toward a gas pipeline project, but Manchin appears to doubt the project can get a fair hearing before the trio in the Fourth Circuit.

Opposition awaits

Senate Minority Leader Mitch McConnell (R-Ky.) gave Manchin’s plan an unfriendly reception Sept. 21. He called it “permitting reform in name only,” implying it is far too unambitious.

McConnell instead promoted a permitting reform bill introduced Sept. 12 by Sen. Shelley Moore Capito (R-W.Va.). But her bill includes provisions known to be nonstarters among Democrats, including provisions to codify Trump administration guidelines under the National Environmental Policy Act and to codify Trump regulations governing the jurisdiction of the Clean Water Act. She would also give states control over energy development on federal lands within their boundaries.

Sen. Bernie Sanders (I-Vt.) has been an outspoken foe of the agreement between Manchin and Schumer on a permitting reform plan, and Rep. Raul Grijalva (D-Ariz.) has led the opposition in the House. Both have suggested fossil fuel lobbyists and money are behind the supposed reform effort.