by Kevin Killough
Proponents say permitting reform is vital to bringing down costs of gasoline, electricity and housing, most everyone finds desirable. However, legislation aimed at streamlining permitting always paves the way for projects to be built that one group or another doesn’t want to move forward.
For nearly 50 years, Congress has considered various legislative approaches to permitting reform to shorten the timelines required to get federal permits, complete required reviews, reduce litigation and create more permitting certainty. But now, the Senate has crafted a bipartisan bill that proponents of such reform think could finally get across the finish line.
Comprehensive permitting reform has consistently collapsed when the needed bipartisan congressional support and White House backing failed to come together.
Attempts go back as far as the 1980s, when the Jimmy Carter administration worked with lawmakers to “consolidate judicial review” and “cut through procedural red tape” to keep critical energy projects from coming to a standstill.
Proponents of permitting reform argue that if America is going to bring down fuel prices and electricity rates, energy infrastructure — including pipelines, power plants and refineries — needs to be easier and cheaper to build.
It’s not just fossil fuel projects. The same permitting processes apply to wind and solar projects, and renewable industry groups often champion permitting reform.
In September, after 20 months of hearings and negotiations, a bipartisan group of senators released the Bipartisan American Affordability and Jobs Act – BAAJA. The White House is reportedly backing the legislation, which has proponents optimistic that such support can get BAAJA signed into law.
Still, the measure faces considerable hurdles. Whether it will pass in the House remains unclear. And opponents, primarily environmental groups, are gearing up for another effort to kill the bill, largely because it would benefit fossil fuel projects.
Permits and litigation drive up costs
Sarah Montalbano, energy policy analyst at Always On Energy Research, points out on her “Montalbano Mondays” Substack that energy projects often die waiting for a permit, losing a permit that was granted, or getting crushed by litigation and unfriendly administrations.
The analyst recounts how the Mountain Valley Pipeline, a 303-mile natural gas line running from West Virginia to Virginia, was originally estimated to cost $3.5 billion in 2018. After years of legal challenges and construction delays, the figure ballooned to $9.6 billion by June 2024.
“The developers told the Supreme Court that simply maintaining erosion controls along the inactive right-of-way during court-ordered construction stoppages cost approximately $20 million per month," Montalbano wrote. "The developer reported that getting contractors for the line became ‘slower and more challenging than expected,’ because multiple crews refused to work on it ‘based on the history of court-related construction stops.’ ”
Congress stepped in to block further judicial review with the 2023 Fiscal Responsibility Act, which allowed the project to finally get completed.
Renewable industry and environmental groups
The Mountain Valley Pipeline’s experience is typical of permitting and litigation processes for energy projects, including renewable energy infrastructure.
Several renewable energy industry groups wrote a letter last week to the sponsors of BAAJA expressing the clean energy industry’s support for the measure.
“BAAJA would help significantly increase clean energy deployment and expands our transmission network to deliver new, affordable, and reliable electricity to the homes and businesses that rely on it,” the groups wrote.
Despite the boost it would give to renewable energy projects, environmental groups are often the loudest opponents of permitting-reform efforts.
Earlier this month, over 200 conservation, environmental and progressive groups sent a letter to the Democratic sponsors of BAAJA, arguing that it contains “sweeping attacks on the Endangered Species Act.”
“If enacted, this would be one of the most astonishing failures of leadership in recent history and would leave a stain on your conservation legacy for decades to come,” the groups warned.
Among the 215 signatories are the Center for Biological Diversity, the Western Environmental Law Center, Friends of the Earth and the International Fund for Animal Welfare.
Benefits for the wrong projects: Sierra Club
The Sierra Club issued a statement shortly after BAAJA was introduced that acknowledged that it would remove barriers for clean energy that the group supports. However, the group warns that the bill comes amid a “backdrop of attacks” from the Trump administration on the Sierra Club’s anti-fossil fuel policies.
The statement applauds the benefits the bill could bring to “clean energy” projects but objects to those benefits possibly being extended to fossil fuel projects that the organization wants blocked.
“While these provisions may prohibit the Trump administration’s ability to revoke future permits for clean energy projects … we fear these provisions could result in project lock-in for dangerous projects that receive a rubber stamp,” the group wrote.
The National Trust for Historic Preservation also issued a statement expressing its opposition to the bill.
“The bill would dramatically narrow the historic and cultural properties and projects that are subject to review, fundamentally alter consultation with Tribal Nations and other stakeholders, expand unilateral federal agency authority, and significantly constrain judicial review,” Shaw Sprague, vice president of government relations at the National Trust, said in a statement.
Proponent pushes for 'freedom to build'
Supporters of the measure argue that the barriers to building anything as a result of regulatory review and litigation in the U.S. are driving up costs for everything, and they’re urging lawmakers to support the legislation.
Energy expert Alex Epstein wrote that gas prices are high because it’s too hard to build a refinery, electricity rates are high because it’s too hard to build power plants and power lines, and housing is too expensive because it’s too difficult to build housing and apartment complexes. Even munitions shortages, he wrote, can be traced back to the difficulty in building factories.
“The skill of building hasn’t somehow gotten harder; in fact, technology has made it easier than ever to build great things quickly and affordably. The problem is the government has made it far harder than ever to build things—above all through an endless permitting process for big, important projects,” Epstein wrote.
He called BAAJA “freedom-to-build legislation” and urged Congress to make the bill a priority with the dwindling days left on this year’s congressional calendar.
“Unless Congress makes BAAJA an absolute top priority, it will not happen this Congress – and then will have to be restarted next Congress (which would mean almost certain failure),” he wrote.
Challenges await in the House
The permitting reform package could face an uphill battle in the House.
California Rep. Jared Huffman, the top Democrat on the House's Natural Resources committee, said in a statement that BAAJA Democratic Senate sponsors Sheldon Whitehouse, of Rhode Island, and Sen. Martin Heinrich, of New Mexico, “have done some good work,” but “they've been negotiating from a position of weakness and the tentative deal unveiled today raises significant questions and concerns that would have to be resolved before most Democrats could support it.”
He’s hoping that if Democrats regain control of the House and possibly Senate in the midterms, they’ll have better leverage with Republicans to negotiate a better permitting reform bill.
It’s possible that BAAJA will end up in the extensive graveyard of permitting reform efforts — and for the same reason it always does.
A former House Democratic aide who was involved in past permitting efforts told Politico anonymously that waiting for greater leverage will, as Epstein argues, spell doom for this year’s effort.
“I think you could see, on both sides on the extreme levels, is we’re just gonna wait until we can get a better deal. And that’s why permitting reform fails time and time again,” the aide said.
Kevin Killough
Source: https://justthenews.com/politics-policy/energy/bipartisan-senators-take-another-shot-elusive-hope-permitting-reform-after
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