Manchin’s Permitting Reforms Don’t Go Far Enough

West Virginia Democrat Joe Manchin, the most conservative in the Senate, has proposed to make it easier to build energy plants and infrastructure.

Manchin was promised permitting reforms for supporting the Inflation Reduction Act; really a health-care and green-energy spending plan.

But other Democrats are skeptical, arguing Manchin’s Energy Independence and Security Act would benefit fossil fuels and nuclear power in addition to renewables. Republicans don’t think the reforms go far enough.

Which would normally suggest to me Manchin had found the right balance, but in this case the right has the better of the argument. (If you agree America must massively expand clean energy, which unfortunately few Republicans do.)

What Manchin is proposing

Manchin’s full bill is 91 pages. His office has released an eight-page summary and the senator has an op-ed about it in The Wall Street Journal.

His key proposals are to:

• Set a two-year target for environmental reviews of energy projects.
• Designate a lead agency to coordinate policy reviews.
• Create a 150-day statute of limitations for court challenges (once environmental reviews have been completed and a permit is issued).
• Require the president to keep a rolling list of 25 “strategically important” energy projects.
• Allow the Federal Energy Regulatory Commission (FERC) to overrule state objections to building transmission lines.
• Require federal agencies to issue all approval and permits necessary to complete the Mountain Valley Pipeline.

The last one is a giveaway to Manchin’s own state: the Mountain Valley Pipeline would pump natural gas from West Virginia to Virginia.

Why reform is needed

Environmental regulations from the 1960s and 70s now slow America’s transition to green energy.

In Nevada, conservationists are challenging the construction of a geothermal plant and what would be the largest solar farm in the United States under the National Environmental Policy Act.

Along the coasts, the Endangered Species Act has slowed offshore wind deployment.

Nationwide, the need to conduct environmental impact studies in multiple states is delaying the construction of new power lines. The last major project was a decade ago. In order to cut greenhouse gas emissions to net zero by 2050, the United States would need to triple its transmission infrastructure — so solar farms in the Sun Belt and wind farms in the Plains can power America’s cities.

Reforms are weaker than they sound

Manchin’s reforms would not be a breakthrough. The American Enterprise Institute’s Benjamin Zycher, who specializes in energy and environmental policy, points out:

• The two-year “target” is a lame duck. The law wouldn’t restrict public comment procedures nor limit litigation options under the Clean Air Act, the Clean Water Act, the Endangered Species Act and the National Environmental Policy Act.
• The regulatory “lead agency” would have no power to force others to follow its guidelines or schedules.
• The “requirement” to name 25 projects of national importance doesn’t require the president to do anything other than make up a list.

I think Zycher is too dismissive of the 150-day statute of limitations (“So the lawsuits challenging the permits will be filed sooner than otherwise would be the case”), too critical of allowing the FERC to overrule state governments to build transmission lines (you can’t have a national energy strategy with 50 state vetoes), and ridiculous when he writes “there is no evidence of a climate crisis,” so switching to green energy is unnecessary anyway. His other criticisms are on point.

What should be changed

Zycher is wary of central planning, but I think he makes the case for a stronger bill.

• The two-year “target” for environmental review should be replaced with a hard limit. If agencies fail to meet the deadline, the applicant should get to build their project.
• The “lead agency” should either have the power to overrule others or it shouldn’t be named at all. The point is to speed up the permitting process, not bog it down.
• Similarly, naming 25 “strategically important” projects should either be meaningful, for example by pushing them to the top of the review list, or taken out.

The 150-day statute of limitations and the expansion of the FERC’s authority, including the power to decide how much and which states should contribute to the cost of building new pipelines and power lines, should be kept as they are.

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