Newsline

On Sept. 28, after failing to secure the support of at least 59 of his Senate colleagues, Sen. Joe Manchin, D-W.Va., requested that his efforts to attach language on federal permitting reform for energy projects be removed from the must-pass continuing resolution, ensuring smooth passage of a government funding bill ahead of the Sept. 30 deadline.

In August, Manchin, chair of the U.S. Senate Energy and Natural Resources Committee, exacted a promise from Senate Majority Leader Chuck Schumer, D-N.Y., to hold a vote on Manchin’s permitting reform priorities before the government funding deadline for his support of the Democrat’s reconciliation bill, the Inflation Reduction Act. On Sept. 21, Manchin released the text of his Energy Independence and Security Act with the intent of including the language in the continuing resolution. However, on Sept. 27, with the funding deadline looming and support for the proposal lacking, Manchin urged Leader Schumer to remove the proposal from the CR.

Manchin’s proposal would have set target timelines for NEPA reviews and court challenges while creating a rolling list of 25 energy projects that are in the “national interest,” which would require these projects to adhere to prevailing wage requirements, expanding the use of Davis-Bacon prevailing wage requirements into the private sector.

Republicans have also proposed their own permitting reform bill earlier in the month, on Sept. 12, with Sen. Shelley Capito, R-W.Va., leading 46 of her Republican colleagues in introducing the Simplify Timelines and Assure Regulatory Transparency Act.

On Sept. 27, ABC sent a letter to Capito and the Senate outlining ABC’s support for the START Act, which addresses many of the priorities of the merit shop construction industry in reforming the permitting process for critical energy and natural resource construction projects.

• The START Act codifies the ABC-supported National Environmental Policy Act regulations implemented under the Trump administration, which would modernize NEPA by creating a coordinated, predictable and transparent method for permitting. ABC will continue to oppose the Biden administration’s NEPA revisions, which would undermine the 2020 rule’s efforts to modernize the federal environmental review process.
• ABC has advocated for sensible reforms, such as One Federal Decision language included in the 2021 Infrastructure Investment and Jobs Act, to ensure that projects are completed on time and on budget while protecting communities and the environment. The START Act would codify key elements of the One Federal Decision framework for energy projects, including timely approvals for projects, permitting review schedules for projects that are no longer than two years and limitations on the page length of environmental documents. Additionally, by offering clear timelines for litigation and judicial challenges to energy project approvals, the START Act would provide certainty for contractors and developers to plan and execute projects.
• The START Act would also codify the ABC-supported Navigable Waters Protection Rule’s definition of “waters of the United States” under the Clean Water Act. For decades, uncertainty surrounding the scope of federal authority under the Clean Water Act has resulted in litigation, regulatory uncertainty and confusion in the business community. ABC supports the EPA and the Corps maintaining the clear, concise definition of WOTUS implemented in the 2020 NWPR final rule so its members have the information they need to comply with the law while also serving as good stewards of the environment. The START Act would also codify the Trump administration’s Section 401 Certification Rule under the Clean Water Act to prevent state actions that unreasonably block energy projects.
• While ABC supports the Endangered Species Act’s purpose of protecting species threatened with extinction and recognizes the need for science-based, data-driven actions that conserve those species and the habitats on which they depend, much-needed reforms to the ESA have been difficult to achieve. By shortening ESA consultation timelines from 90 days to 60 while shortening thresholds for ending or extending consultation times from 150 days to 100, the START Act offers an improved pathway to more efficient permitting.

While Congress is set to pass the CR and return to the campaign trail ahead of the November midterm elections, there could be an opportunity to find compromise on a proposal to reform the nation’s permitting process. ABC will continue to advocate for critical reforms that streamline reviews and avoid unnecessary and overly burdensome considerations that cause significant delays to construction projects throughout the country, and will continue to monitor permitting reform legislation in Newsline.