Can Joe Manchin And Democrats Deliver On Permitting Reform?

After many months of tension between Democratic Party leadership and Sen. Joe Manchin D-WV., the two sides appear to have finally found a way to work together. In August, Sen. Chuck Schumer D-NY and Sen. Manchin worked out a side deal that prescribed, in exchange for Manchin’s support of the Inflation Reduction Act (IRA), federal permitting reform would be passed later in the year. The IRA subsequently passed with Manchin’s crucial vote. Now, the big question is: Will Schumer and the Democrats deliver on their promises to Manchin?

Schumer has pledged continued commitment to the deal, but opposition is growing steadily amongst the Democrats’ progressive base. The influential Sen. Bernie Sanders is the latest to come out against permitting reform. In the House, Rep. Raúl Grijalva has been circulating a letter, asking leadership to separate the permitting deal from a continuing resolution bill that must pass later this month. More than 70 House Democrats have already signed on. But for the time being at least, Schumer has stated he plans to include the permit deal in the bill to keep the government funded.

Manchin’s office has provided a list of provisions that may be included in any deal. These include setting maximum review times for permitting reviews, including two year caps for major National Environmental Policy Act (NEPA) reviews and a one year cap for smaller projects. According to the Council on Environmental Quality (CEQ), the average time to complete an environmental impact assessment under NEPA is four and a half years. Federal Highway Administration projects, which are often large infrastructure projects, average over 7 years, according to the CEQ.

Not all Democrats are happy with making changes though. Reforms echo back to NEPA process updates made by the Trump administration, changes that were subsequently dismantled when Joe Biden took office. Sen. Sanders has labelled the permit deal as “a huge giveaway to the fossil fuel industry,” in part because the continuing resolution is likely to include a provision speeding up completion of the Mountain Valley Pipeline—a major priority of Manchin’s. The pipeline would run from Manchin’s home state of West Virginia through Virginia and into North Carolina.

The fossil fuel industry is not the only industry likely to benefit from speeding up environmental reviews, however. A 2021 report from the R Street Institute found that 42% of Department of Energy projects actively under NEPA review at that time were “related to clean energy, transmission or environmental conservation.” By contrast, only 15% were fossil fuel related, and most of those related to natural gas, which often displaces dirtier coal.

Nevertheless, capping the length of time a project may be under NEPA review may not be the silver bullet some reformers hope. The R Street report notes that faster NEPA review times can correspond with lower quality analysis, which can create problems when litigation ensues. Paradoxically, mandating shorter review times could make it harder for projects to move forward, if rushed analysis means projects’ environmental impacts are unclear to courts.

While Manchin wants litigation reform included in any deal, in practice this may mean shorter time limits for bringing court challenges. That is all well and good, but it would be better if Congress clearly specified the criteria by which projects could be blocked. The Trump administration tried to exempt many projects from NEPA review, and also limit what kinds of environmental impacts could be considered. Congress could consider codifying similar provisions in law.

At the moment, it’s looking like the chances of permitting reform passing are high. It will be hard for Democrats to oppose legislation funding the government. Plus, party leadership is unlikely to break their promise to Manchin, for fear of alienating him on future deals.

Still, there are some in the Democratic Party who continue to resent how much leverage Manchin has in negotiations. They should remember that without Manchin’s support, the historic climate change provisions in the Inflation Reduction Act’s would never have happened. There’s still plenty of time for a permitting deal to fall apart, especially given the growing opposition, but at the moment prospects are looking pretty good.