Manchin’s Permitting Fiasco Sides With Project 2025 Over Communities and the Climate

July 26, 2024

Manchin's Permitting Fiasco Sides With Project 2025 Over Communities and the Climate

By Tyson Slocum and Alan Zibel

Senator Joe Manchin (I-W.V.), who just days ago threatened to register as a Democrat to challenge Kamala Harrisfor the Presidential nomination, has unveiled a sweeping energy permitting billwith Republican Sen. John Barrasso (R-Wyo.) that was developed in secret over several months.

Under the guise of "permitting reform," the legislation eviscerates public interest regulations for liquified natural gas (LNG) exports. That move, and a litany of other fossil fuel giveaways, severely undercut any potential climate benefits that might be attained by bringing renewable energy sources to the grid more quickly.

Even though Manchin recently left the Democratic party and declared himself an independent, he still holds a powerful position in Congress as the chairman of the Senate Energy and Natural Resources Committee.

That perch gives Manchin a powerful position to dictate the agenda in Congress, even on climate change, where he is far out of step with his party.

Manchin has long frustrated efforts to make progress on climate. Two years ago, Manchin failed in an attempt to speed fossil fuel permitting legislation. Last year, he succeeded in ripping up environmental safeguards to fast track the approval of the Mountain Valley Pipeline that brings fracked gas out of Manchin's home state of West Virginia-a major setback for efforts to fight the climate crisis.

Manchin released the permitting bill text with zero public input and fast-tracked its committee vote for July 31. The danger of this sped-up process is that the bill could be folded into a short-term budget extension before lawmakers can truly digest the bill's damage.

In a press releaseannouncing the legislation, Manchin's co-author, Sen. Barrasso, directly attacked the Biden-Harris administration, mischaracterizing its decision to pause new approvals of LNG exports to countries without trade agreements with the U.S. Barrasso incorrectly claimed that the bill would "permanently end President Biden's reckless ban on natural gas exports."

This legislation would enact pieces of the harmful agenda of Project 2025, the corporate-friendly policy agenda developed by the Heritage Foundation. That agenda calls for a new presidential administrationto "eliminate political and climate-change interference in DOE approvals of liquefied natural gas (LNG) exports" and calls on Congress to require automatic approvals of gas exports to all U.S. allies, not just ones with free trade agreements.

While there is a lot to dislike about this bill, we will only focus on the LNG export provisions which are harmful in three key ways:

• LNG export reviews would be automatically approved after 90 days, eviscerating public interest review of exports' impacts on domestic consumers, frontline communities and the climate.
• The Department of Energy would be forced to to rely on discredited Trump-era economic and climate studies in an effort to sidestep legal challenges.
• The Department of Energy's ability to consider environmental justice impacts of LNG exports would be eliminated.

Title VI of Manchin's billoutlines new restrictions on the U.S. Department of Energy's ability to determine whether LNG exports are consistent with the public interest. For nearly 90 years, Congress established that exports of natural gas can only be authorized to nations with whom we have free trade agreements (18 total) that are "consistent with the public interest", per 15 USC § 717b(a).

The Department of Energy has long deferred to industry-friendly economic and climate analysis to evaluate that LNG exports are consistent with the public interest. The scales are tilted through Trump-era studies, including a 2018 macroeconomic report that concludes that exports at any levelwill always be consistent with the public interest, reasoning that income that Americans earn from their stock ownership in LNG companies will offset whatever increases they experience in their monthly energy bills.

The Department of Energy had no methodology to assess the environmental justice impacts of LNG exports. After Public Citizen and other groups consistently pointed out just how badly flawed the DOE's reliance on these deficient studies were, the Biden-Harris Administration announced in January 2024 that it was pausing review of all pending applications until it had time to update these Trump-era reports-a process that they estimate would be complete by March 2025.

Manchin and his fossil fuel allies were enraged that the Biden-Harris Administration sought to modernize its assessment of the LNG export review process to more accurately conform to the statutory public interest standard. As a result, they now seek to undercut DOE's ability to protect the public.

Section 601 of Manchin's bill ("Action on Applications") amends the Natural Gas Act of 1938 by imposing a strict 90 day deadline for DOE to review whether a pending application is in the public interest, with the 90 day clock expiring whenever a final environmental impact assessment is published. If DOE is unable to take action within 90 days, the LNG export application is automatically approved and deemed to be in the public interest. This eviscerates the current process and will result in billions of cubic feet of LNG exports to be added to America's already unprecedented record LNG export capacity.

Section 602 of Manchin's bill requires DOE to use flawed Trump-era 2018 macroeconomic assessment and Trump's 2019 climate report to evaluate export applications while DOE continues its updates to these two flawed studies. The result of this new legislative mandate will be to require DOE to only consider the flawed Trump methodologies in assessing whether LNG exports are consistent with the public interest.

This new language will render moot protests by Public Citizen and others pointing out the factual errors of these studies and introducing new evidence of harms caused by record LNG exports, forcing DOE (and reviewing courts) to rely on outdated, Trump-era flawed reports to determine what is in the public interest. The bill further imposes lengthy requirements on DOE's ability to modernize these studies, requiring that any update conform to OMB's peer review process.

Ordinarily, imposing a peer review process would not be a problem, except that Section 602 establishes in statutethat while that lengthy peer review process occurs, DOE can only rely upon the disproven and outdated Trump-era studies. So Section 602 essentially puts the public interest modernization process on ice while fast-tracking pending export applications using deeply flawed analyses.

The effect will be the quick greenlighting of billions of cubic feet of new LNG export capacity. The speedy approval of five major Gulf Cost LNG export facilities would represent a 40%increase above the current capacity in operation or under construction, resulting in enormous damage to the climateand pushing up prices for domestic consumers.

Finally, the Manchin legislation disallows DOE from including any assessment of LNG exports' impacts on frontline communities near polluting fossil fuel infrastructure, who have been forced to deal with often-lethal health impacts.

Any modeling of Manchin's permitting legislation that attempts to estimate the entire bill's impact on future greenhouse gas emissions must reflect the legislation's impact on hastening the approval of an unprecedented buildout of massive LNG export capacity.

Supporters of the legislation are likely to argue that speeding up deployment of renewables is worth the tradeoff. But this Dirty Deal will harm far more than it helps.

As Rep. Raul Grijalva, (D-N.M.), the top Democrat on the House Natural Resources Committee, said"Checking off wish lists for oil, gas, and mining companies is not permitting reform."

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