Permitting Reform Deal: What's In It for Pipelines?
With Senators Joe Manchin's and Kyrsten Sinema's support of the "Inflation Reduction Act" (IRA) reincarnation of Build Back Better, our attention is also on a future pipeline permitting reform deal Manchin is said to have cut in exchange for his support of IRA.
Manchin reportedly received assurances from Senate Majority Leader Schumer and House Speaker Pelosi that both chambers would pass his permitting reform legislation this session. But it will no doubt encounter strong opposition from both Senate and House progressives who will likely not support a Manchin-endorsed bill to build out energy infrastructure. We remain cautious about its prospects, as it is basically a handshake deal, relying on goodwill and word-keeping, and not on any real leverage, since the IRA will presumably already have been enacted.
Having said that, here are some of the relevant and important provisions for reforms, many of which we support, that would smooth and accelerate pipeline project permitting:
Designate and prioritize projects of strategic national importance.
Direct the President to designate and periodically update a list of at least 25 high-priority energy infrastructure projects and prioritize permitting for these projects. Require a balanced list of project types, including: critical minerals, nuclear, hydrogen, fossil fuels, electric transmission, renewables, and carbon capture, sequestration, storage, and removal. Criteria for selecting designated projects will include: reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade with our allies.
Set maximum timelines for permitting reviews, including two years for environmental reviews for major projects and one year for lower-impact projects.
Require a single inter-agency environmental review document and concurrent agency review processes. Designate a lead agency to coordinate inter-agency review.
Reform Section 401 of the Clean Water Act by reinstating pipeline permitting improvements from the Trump administration.
Require final actions within one year of certification requests: either grant, grant with conditions, deny, or waive certification. Clarify that the basis of a review is limited to water quality impacts from the permitted infrastructure, and not on extraneous areas such as emissions. Prohibit State or Tribal agencies from requiring project applicants to withdraw and resubmit applications in order to stop/pause/restart the one-year certification clock.
Address excessive litigation delays.
Set a statute of limitations for court challenges to permits. Require that if a federal court vacates a permit for energy infrastructure, the court must set a reasonable schedule and deadline, not to exceed 180 days, for the responsible agency to act.
Complete the Mountain Valley Pipeline. Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction over any further litigation. This court has been more balanced with respect to energy infrastructure permitting, versus the 4th Circuit which is the jurisdiction that has consistently blocked MVP and other Northeast pipeline projects.