OPINION:
As Sen. Tom Carper, Delaware Democrat, gets ready to add to the melange of proposed permitting legislation and as the debt limit discussions — which may include some permitting reforms — head to their conclusion, it might be worth thinking about whether the current batch of permitting reform may do more harm than good.
The reality is that there are only two changes to the current regulatory regime that would have a material effect on getting energy projects built on time. The first change would be to reform how Section 401 of the Clean Water Act is exercised with respect to energy projects. That section requires states to certify that the project in question — a road, a bridge, a natural gas pipeline, an electric transmission line — will not compromise a state’s ability to meet its water quality goals.
As you might imagine, larger projects tend to cross a lot of streams, rivers and other water bodies, and some states (you can guess which ones) routinely use the authority given to them under Section 401 as a de facto veto over energy projects, especially natural gas pipelines.
The good news is that the Lower Energy Costs Act, the House version of permitting reform, includes provisions addressing Section 401. There is no telling whether it will survive the process.
The second change would be to preclude courts from endlessly reviewing permits and their underlying data. Courts routinely send back permits and the associated environmental assessments because they don’t care for the workmanship, thoroughness, tone and tenor of the applicant, the permitting agencies or both.
In the case of the Mountain Valley Pipeline, which should have been a fairly noncontroversial natural gas pipeline project, the federal judges in the 4th U.S. Circuit Court of Appeals have sent the permit or parts back to permitting agencies (including the Forest Service, the Corps of Engineers, and the Fish and Wildlife Service) five times, delaying the project by years.
In addition to these reforms, placing all of the permitting authority for energy projects in a single agency would be…
Read More: The hazards of permitting reform in getting energy projects built on time