Opponents Of Joe Manchin’s Permitting Reform Demonstrate Why We Need Permitting Reform

Less than one week ago, Senators Joe Manchin and Chuck Schumer shocked Democrats and Republicans alike with their announcement of a reconciliation package that included significant climate and energy provisions: the Inflation Reduction Act of 2022. Although much reporting has been focused on the specifics of that package, Manchin conditioned his support on Democratic leadership taking up environmental permitting reform in a separate bill later this session. This afternoon, Manchin released a 1-page summary of his proposed permitting reform bill, outlining the reforms he seeks and the benefits it will provide to clean and fossil technologies alike. Environmental groups were quick to jump on the proposal as an ‘attack’, singling out the fossil provisions in particular. Although the proposed reforms are not perfect, there should be no doubt that broad-based permitting reform is needed to advance the clean agenda, and this bill is our best chance to get it. Without it, the tactics pioneered by the environmental movement will continue to be used to subvert the clean infrastructure of tomorrow.

The environmental movement has been incredibly successful over the last half-century at advancing legislation and policies that restrict project development through the careful review of environmental impacts. A landmark 1970s law, the National Environmental Policy Act (NEPA), requires project developers across a range of industries to tally and mitigate impacts on air, water, noise, traffic, and more.

Fifty years in, NEPA has stopped countless environmentally destructive projects from breaking ground and has significantly slowed the process through which new projects get permitted and built. NEPA, however, has also shown itself to be vulnerable to abuse. The law fails to provide guidance for how to balance the trade-offs inherent in any development, and the qualitative nature of many environmental impacts, combined with the sheer number of impacts that must be mitigated, invites lawsuits and challenges. Opposition groups can readily contend that a project has not properly accounted for its impacts or that the project benefits have been overstated. Lawsuits challenging project reviews can tie a developer up in costly litigation for years, effectively killing projects.

The result has been a perversion of the law’s original intention and a weaponization of NEPA from groups on both sides of the aisle. Proposals from bike lanes to enrollment increases at UC Berkeley have been knocked off-course by bad-faith uses of NEPA. The law, designed to prevent bad projects from getting built, instead is preventing any project from getting built. It has become a defender of the status-quo, which is a problem when the status-quo is destroying the planet.

Surprisingly, it’s often the very environmental groups cheering clean energy investments who wield NEPA lawsuits against clean energy infrastructure. The fundamental problem is that any technology has environmental and social impacts of one form or another. A project that sucks CO2 from the air can incentivize the continued operation of a fossil-fired facility in underrepresented communities. Nuclear facilities produce long-lasting radioactive waste. There is no silver bullet to the climate and environmental justice crises; no one technology or solution will satisfy every audience. For example, just 2 months ago, 73 groups penned a letter to California Governor Gavin Newsom outlining their opposition to the widespread adoption of a variety of clean technologies, including renewable fuels, carbon capture from power plants and other industrial facilities, and direct-air capture. The reality is that most projects will find themselves with at least one group in opposition, and only a single opposition group is needed to weaponize NEPA and derail a project.

Without reform, abuses will continue and good projects will be killed. Even if the Inflation Reduction Act becomes law (no guarantee while Senator Sinema remains silent on her intentions), the incredible investment in clean and renewable technologies it will enable will only bear fruit if projects that make actual impacts are built. Manchin’s goal of tying energy investment with environmental permitting reform is good policy: neither reform is likely to be successful without the other.