Democrats' Permitting Hypocrisy

KEY TAKEAWAYS

• Lengthy federal environmental reviews often delay infrastructure projects, with the average environmental impact statement taking 4.5 years to complete and spanning 661 pages.
• While Republicans in Congress and the last administration have placed an emphasis on improving processes, speeding reviews, and providing regulatory certainty, President Biden has moved to overturn those efforts.
• Before Democrats jammed through their latest reckless tax and spend spree in August, they said they had a “deal” to enact permitting reforms by the end of September. They’ve yet to produce any actual bill and have blocked measures that would actually address regulatory and permitting challenges. 

When Democrats unveiled their latest reckless tax and spend spree last month, Senator Joe Manchin said they would advance permitting reforms for all energy infrastructure projects by the end of September. But they jammed their partisan bill through Congress before releasing even draft legislative text for this permitting “deal.” While details remain scarce, President Biden and Democrats in Congress have continued to use the administrative state to push overregulation and have opposed efforts to improve the efficiency of environmental reviews and permitting.

Democrats’ Double Talk

Even if Senator Manchin can pull together legislative language, he is unlikely to find much support for permitting reform among his colleagues. On August 4, Senate Democrats lined up to oppose a resolution led by Senator Dan Sullivan that would have nullified a Biden administration rule adding expansive new hurdles for projects. During debate over the reckless tax and spend spree a few days later, every Senate Democrat − including Senator Manchin − voted to block an amendment offered by Senator Shelley Moore Capito that would have enacted reforms to simplify environmental reviews and rein in bureaucratic overreach.

While some Democrats have expressed a willingness to consider provisions to speed reviews for green energy projects, other progressive members have said they “ardently oppose” Senator Manchin’s efforts and will contest reforms. House Natural Resources Committee chairman Raúl Grijalva, whose committee has general jurisdiction over environmental regulation, said he feels no responsibility to support provisions agreed to by Senate Majority Leader Chuck Schumer and Senator Manchin. Despite the mixed messages, the reality is clear: Democrats have pushed policies to slow environmental reviews, and they are blocking meaningful reforms.

Biden Expands Permitting processes

President Biden and his administration have added significant burdens for energy and infrastructure projects through overregulation and additional permitting requirements. Over the last 18 months, the Biden administration has consistently taken steps to grow federal bureaucracy and make it more challenging to carry out projects.

Under the National Environmental Policy Act of 1969, major infrastructure projects require environmental reviews to determine potential effects. NEPA was intended to serve as a federal framework to provide information about the environmental impacts of permits for major projects, but environmental reviews have grown in scope and length. The average environmental impact statement takes about 4.5 years, according to a 2018 review by the Council on Environmental Quality. A 2020 CEQ analysis found the average EIS totaled a whopping 661 pages.

While the previous administration worked to make reviews more efficient, President Biden has sought to appease radical environmental groups. On his first day in office, President Biden directed agencies to review dozens of actions taken during the Trump administration, many of which were aimed at reducing bureaucracy and cutting onerous regulations that delay projects. Included on the list for review was a 2020 rule issued by the Trump CEQ updating NEPA implementing regulations for the first time in 40 years. The rule set a target of two years for review and required the identification of a lead federal agency for a project to simplify and streamline oversight. President Biden’s CEQ issued a final “Phase I” rule in April that reversed parts of the prior rule and directed federal agencies to consider the impact of a project on climate change as part of environmental reviews. The rule was cheered by radical green groups, some of which attempt to use federal reviews to stifle projects. The Biden administration has already announced plans for a “Phase 2” rule to make further changes to complicate the environmental review process.

The Biden administration also took issue with a 2020 rule issued by the Trump Environmental Protection Agency to modernize requirements under Section 401 of the Clean Water Act, which states previously used as a tool to block fossil fuel infrastructure projects. For example, in 2020, New York’s Department of Environmental Conservation denied a certificate for the proposed Northeast Supply Enhancement natural gas pipeline project. Under Section 401 of the Clean Water Act, before a federal license or permit for a project can be issued, a state must issue a certificate concerning discharges into waters of the United States covered by the license or permit. In October 2021, the U.S. District Court for the Northern District of California vacated the 2020 rule, but the Supreme Court issued a stay of the lower court’s order in April. Then in June, the Biden administration proposed a new rule to update Section 401 requirements, seeking to restore the broad authority of states.

The administration has also used environmental processes to obstruct projects. In February, President Biden’s Interior Department blocked a road project that would serve a copper mine in Alaska, citing inadequate environmental analysis. The action highlights the risks of Democrats’ energy approach. Their favorite green energy projects, like renewable energy and electric vehicles, require a significant amount of critical minerals, and global commitments are projected to send demand soaring in the future. If they use permitting red tape to block the development of these natural resources, they can’t get the “green revolution” they claim to want without increasing our reliance on foreign countries such as China and Russia.

Following in the footsteps of President Barack Obama, who the New York Times once called “the regulator-in-chief,” President Biden is using executive power to push radical environmental policies that lack sufficient congressional support. His actions are intended to grow government, and they will delay projects. If Democrats are serious about permitting reform, the first step they can take is to stop all their harmful executive actions.

REPUBLICANS ARE READY WITH Actual SOLUTIONS

For years, Republicans in the Senate have been pushing for meaningful permitting reform that will yield actual results to simplify reviews while preserving our environment.

Senator Capito’s amendment from August serves as a blueprint for what meaningful permitting reform could look like. The amendment would have:

• Codified the modernized 2020 NEPA implementing regulations;

• Codified a number of key Clean Water Act rules, including the commonsense Navigable Waters Protection Rule defining “waters of the United States”; streamlined Nationwide Permits for all projects, including oil and gas pipelines; and the 2020 Section 401 state certification rule;

• Limited new red tape driving higher costs for gasoline, electricity, and other energy sources;

• Codified the Trump administration’s One Federal Decision policy for energy projects and reformed judicial review to prevent never-ending litigation that delays and kills projects;

• Given states the flexibility to approve and build energy projects within their own borders, with the goal of energy independence from countries such as Russia and China;

• Expedited the permitting process for the Mountain Valley Pipeline project;

• Shortened timeframes for Endangered Species Act consultations;

• Reformed the New Source Review permitting process under the Clean Air Act; and

• Eliminated unfair and often confusing permitting actions in order to support our domestic energy production.

Other Republican-backed initiatives seek to support a range of infrastructure projects. Senator Sullivan has introduced sweeping legislation to modernize and expedite the burdensome, outdated NEPA process. Legislation led by Senator Lisa Murkowski seeks to improve the efficiency of federal reviews for mineral production projects in particular, which the industry estimates take seven to 10 years on average. Senator Rob Portman has led efforts to extend streamlining provisions previously included in legislation authorizing federal surface transportation programs.

These are just a few examples of the solutions Republicans are pushing that will yield results and deliver projects to benefit the American people. Through these reforms, the United States can continue to invest in improving America’s infrastructure, create good-paying jobs, lower the prices of goods, and remain competitive on the world stage – all while securing domestic production and the export of American energy around the globe. Democrats should abandon their radical policies that undermine and delay infrastructure projects and instead embrace these solutions.