New Energy Permitting Legislation: One Step Forward, Too Many Steps Back

The Senate Energy and Natural Resources Committee recently approved bipartisan energy permitting legislation (S.4753) sponsored by Chair Joe Manchin (I-WV) and Ranking Member John Barrasso (R-WY). The legislation combines worthwhile provisions to speed transmission buildout for renewable energy with windfalls for fossil fuel and mining companies, including provisions that would degrade public lands, double down on fossil fuels, harm frontline communities, and fail to meet the moment when it comes to responding to the climate crisis in an equitable and just manner.

In its current form, the price of the Manchin/Barrasso bill is simply too high. As a result, UCS joined more than 360 organizations in a letter opposing the bill.

The good…

To be clear, the legislation includes needed and constructive provisions related to energy transmission. Title IV would require the Federal Energy Regulatory Commission (FERC) to establish a process to identify and allocate costs for transmission projects that span multiple planning regions. The language would extend this requirement to non-jurisdictional entities like the Tennessee Valley Authority, municipal power companies, and rural cooperatives which have historically avoided this level of oversight, creating gaps in our ability to build an electric transmission system that serves the national interest.

This is an important priority for the clean energy transition and for building resilience to climate impacts into our electricity system. Putting this requirement in law, particularly the specific criteria for planning and cost allocation, would reinforce FERC's authority, force the Commission to act, and likely accelerate the buildout of a much-needed national transmission system that will enable broad renewable energy penetration and the phaseout of fossil fuels while improving reliability.

Title IV would also streamline FERC's authority to permit interstate transmission projects deemed in the public interest because they meet certain requirements such as improving reliability and lowering costs. This provision would clarify and strengthen FERC authority to permit interstate transmission when states fail to act, and help ensure that a handful of states cannot block national progress on modernizing our electric grid.

…the bad, and the ugly

Despite the wisdom of these provisions, there was insufficient support to move them forward in the Senate without a list of provisions relating to drilling and mining-and the list is long.

Statute of Limitations. Title I of the bill would shorten the time allowed to file a court challenge to an energy permitting decision from 6 years, the default under the Administrative Procedures Act, to 150 days (about 5 months). The provision is based on the unsubstantiated claim that litigation challenging energy projects is often frivolous, or a purposeful delaying tactic.

Judicial review is a critical tool in holding government agencies accountable. A truncated statute of limitations would disproportionately harm stakeholders without deep pockets, especially in communities where agencies and project boosters are slow to share information with the public.

Drilling On-Shore. Title II takes an unfortunate provision from the Inflation Reduction Act (IRA) and makes it worse. Pursuant to section 50265 of the IRA, which itself was a compromise demanded by Senator Manchin to get to the required vote threshold for passage, renewable energy leases on public lands must be paired with oil and gas leases. Under that law, however, federal land managers select which tracts to offer. The new Manchin/Barrasso bill would require federal land managers to offer acres selected by industry to meet the IRA requirement, undermining the ability to protect sensitive areas vulnerable to harm from drilling.

Mine Waste. Title II would also increase the amount of public land a mining company may claim as a mill site from the current five acres to as many sites as the company thinks are "reasonably necessary." This expansion would allow companies to claim thousands of acres of public lands for storage of toxic mining waste. This is only the most recent attempt by the mining industry to circumvent a court opinion limiting the authority to store mine waste on public land. Industry claims that demand for EV batteries justifies a provision like this are overblown.

Drilling Offshore. Current law requires the Secretary of the Interior to engage in a careful, public process to establish a 5-year plan for offshore drilling. The current Biden administration plan includes three sales over five years. Title III of S. 4753 would override the law and require one oil and gas, and one wind lease sale, per year, regardless of environmental or economic factors.

LNG Exports. The Natural Gas Act requires the Energy Department to approve exports of liquified natural gas (LNG) to non-free trade countries unless such exports are contrary to the public interest. Title VI of S. 4753 places a new 90-day time limit on such determinations and mandates that if no decision is made within 90 days, the export application will be automatically approved. This provision would allow LNG exports to happen with no public interest determination at all and would insulate such approvals from any judicial review.

The United States is already the world leader in LNG exports, despite the significant lifecycle greenhouse gas emissions from LNG, and harms to communities and the environment from the expansion of polluting fossil fuel infrastructure. The current approval process, without being further weakened by Congress, already fails to account for the severe harms these export facilities have caused in frontline communities. LNG exports from the US are already on track to more than double by 2028, under current law.

NEPA. The National Environmental Policy Act (NEPA) requires federal agencies to consider alternatives and solicit public input when making resource management decisions. The law allows agencies to create categories or types of decisions that are excluded from NEPA because they have minimal or well-understood environmental impacts. The Manchin/Barrasso bill would mandate broad categorical exclusions for energy-related permitting decisions, whether such exclusions are appropriate or not. These changes fly in the face of the intent of this bedrock law, supported across multiple administrations of both parties, as well as recent efforts by the Biden administration to improve NEPA regulations.

The future

While the Manchin/Barrasso bill faces an uncertain legislative path forward, with the most likely scenario being further consideration after the election, the proposal has significant momentum. Supporters argue that the global warming emissions reductions achieved through better renewable energy transmission will outweigh the increased emissions from the oil and gas provisions. But there are significant concerns about the possibility of accurately quantifying the harms the legislation would cause in Environmental Justice and frontline communities.

When it comes to a just and equitable clean energy transition, a sole focus on a net reduction in global warming emissions will always be insufficient. A broader array of factors that includes all impacts on people and the environment must guide our thinking. The people and neighborhoods which bear the burden of our fossil fuel economy cannot be the same people and neighborhoods expected to bear the burden of a renewable energy economy.

The Manchin/Barrasso bill would facilitate energy transmission, but far too much of the energy being transmitted would still be polluting. UCS has documented more responsible pathways to meeting our emissions targets, which must include a fast, fair phaseout of fossil fuels.

Smarter, more comprehensive legislative proposals like the Clean Electricity and Transmission Acceleration Act (CETA), Public Lands Renewable Energy Development Act (PLREDA) and the Environmental Justice for All Act (EJ4A) would achieve many of the same positive goals, without the harmful language included in the Manchin legislation.

The Manchin/Barrasso bill is based on the old theory that the only way to take a step forward on renewable energy is to take two steps back toward fossil fuels. The reality of climate change is that we no longer have time for that outdated approach.

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