Important NEPA Reform Vote in Senate this Week, with Implications for the Schumer-Manchin Package

The Senate may vote as soon as this week to reinstate Trump administration reforms to the federal permit process under the National Environmental Policy Act (NEPA). The vote has serious implications for future energy, mining, and infrastructure projects. It will also be an indication whether there really is bipartisan support for the substantive permitting reforms that are part of the recent deal between Senate Majority Leader Chuck Schumer (D-NY) and Sen. Joe Manchin (D-WV) on the Inflation Reduction Act of 2022.

In 2020, the Trump administration finalized a rule streamlining the NEPA process

for federal permits. NEPA was enacted in 1970 with reasonable procedural requirements for certain proposed projects that may impact the environment, but its permitting process has grown over the decades into a years-long monstrosity that is difficult and sometimes impossible to navigate. Particularly troubling is the recent misuse of NEPA as a climate change policy tool. Under it, delays and litigation have been deployed to prevent approval of many fossil fuel-related projects, including federal oil and gas leases, pipelines, and export facilities.

Among other things, the Trump-era rule restored NEPA’s original focus on the project itself and not on distant and speculative impacts. For example, a proposed new oil or natural gas pipeline would be studied for the environmental impact of the pipeline itself and not the fact that the energy transported by it will eventually be used somewhere downstream. Bolstering this focus, the NEPA reforms clarified that cumulative effects are not to be taken into account, which is significant because any one fossil fuel project makes an inconsequentially small contribution to greenhouse gas emissions.

If anything, the reforms may have been too modest, as federal bureaucrats and environmentalist litigators have concocted many avenues of obstruction under NEPA, and the final rule only dealt with some of them. Nonetheless, The Biden administration found even these reforms objectionable, and last April finalized a new rule that would largely neutralize them.

In response, the Senate will vote on a Resolution of Disapproval under the Congressional Review Act (CRA) to reject the Biden rule. The CRA only requires a simple 51-vote majority in the Senate. The measure would restore the NEPA reforms.

Reportedly, all 50 Senate Republicans support the measure so it would only need one Democratic vote. Nonetheless, the resolution faces an uphill battle in the House, not to mention the unlikely prospect of the president supporting the repeal of his own rule. The real consequence of this vote is to show who is and is not serious about NEPA reform.

On the surface, it would appear that permitting reform should enjoy broad-based support. Proponents of plentiful and affordable domestic energy would welcome a curtailment of the NEPA-based war on America’s fossil fuels.

Environmentalists both in and out of the Biden administration should also want to see wind and solar projects more expeditiously approved—especially if there is to be any hope of achieving the massive energy transition on a time scale they claim is necessary to avert climate disaster.

Similarly, electric vehicle proponents should recognize the need to ramp up domestic mining and processing of the minerals needed to make the vehicles, especially given how many such proposed new mines are currently being blocked under NEPA. And both Democrats and Republicans acknowledge the need for transportation infrastructure improvements, which are often caught up in NEPA delays. Nonetheless, the reality is that we have only seen any real support for permitting reform from the right side of the aisle.

The Schumer-Manchin deal on the Inflation Reduction Act of 2022 includes a promise to Manchin that Congress will revisit permitting reform at some point in the near future. To be useful, such measures would have to be at least as strong as the Trump-era reforms.

If Democrats in Congress or the President stop the Resolution of Disapproval from becoming law, it is a sign they are unlikely to turn around and make good on delivering the permitting reforms Manchin was promised.