A quick overview of the Senate permitting reform bill

Senate bill has major changes for NEPA, some changes for Clean Water Act

The bipartisan permitting reform bill – at least the Senate version – is out.  You can see it here.  My initial take on the bill is below, and I hope to do some more detailed examination of specific provisions soon.  My focus will be on the environmental law side, not the transmission side, since that is the part I know better.  (For a very helpful overview of the entire bill, see this summary from Heatmap, though I think there are some errors, as I note below).

NEPA:  The biggest proposed changes by far are for NEPA.  Most important is a restriction on remedies for NEPA litigation – courts may not vacate an agency decision that does not comply with NEPA, and can only issue a preliminary injunction if the court finds that there is a “substantial likelihood” the agency action would violate another Federal law, and the other requirements for a preliminary injunction (irreparable harm and balance of equities) weigh in favor of an injunction.  (These changes only apply to NEPA lawsuits – the Heatmap summary incorrectly (I believe) states they also apply to the Clean Water Act and Endangered Species Act.)

Also there are a number of additional exemptions from NEPA review requirements, some of which I have discussed (and criticized) elsewhere: where there is a state environmental document that the agency believes is adequate; electric transmission lines and natural gas pipelines; and water development projects where Federal cost-share is below $50 million.  There is also a significant expansion of exemptions for projects on tribal lands, including from judicial review.

Finally, the record to considered in a NEPA case is substantially narrowed, basically barring agencies from collecting new information after a certain point in the process (an approach I’ve criticized before).

Clean Water Act:  The next biggest change is to certification under Section 401 of the Clean Water Act.  This provision requires federal agencies issuing permits to receive a certification from the state where the permit applies that the permit would comply with state water quality standards and other “applicable State law.”  There has been substantial conflict over some states using Section 401 certification to block natural gas pipelines because of concerns over climate change.  The revisions impose timing constraints on state level certification decisions, impose a stringent burden of proof on states should their certification decisions be challenged in court, and also require that conditions in certification relate to “water quality requirements.”

Endangered Species Act:  The bill provides the first ever generic subject-matter exemption from the ESA, for activities within the rights-of-way of certain Federally funded highways.  It also sets up a process by which Section 7 consultation can be delegated to state agencies – but the same standards and judicial review provisions apply to those consultation decisions.  There are also some changes to the best available science requirement (which mostly appear to set a higher standard for the science to be used in ESA decisions).

Permit certainty:  The bill attempts to constrain executive power to revoke permits for energy projects.  I’ve written before about how this is a difficult goal to accomplish.  The bill tries to do so by listing an exclusive list of reasons why permits can be revoked, and gives permit holder expedited judicial review, as well as monetary penalties payable to the permit holder when the government is found to improperly revoke permits.

Permit issuance:  The bill attempts to address issues around delays in issuing permits by setting tight timeframes for NEPA reviews, and a one year timeframe for other permit decisions, enforceable by expedited judicial review that can order an agency to make a final decision on a permit application.  (The proposals for third-party permit issuance that had been developed in the House were not adopted.)

The bill also creates an. . . . interesting “disparate impact” standard for judicial review of agency denials of permits.  If the agency is found to unreasonably delay or “improperly” deny permits from a specific category of energy project at a rate higher than in the prior five years, a permit applicant can get expedited review of a permit delay or denial, and if the court concludes there has been improper delay or denial, an order for a decision or issuance of the permit, and substantial monetary penalties paid to the permit applicant.

Those seem to be the most significant provisions I can identify at the moment.  There may be more.  As noted above I plan on doing more detailed analysis of the important provisions soon.  Overall, whether these changes were worth a deal for the transmission provisions of the bill (which reportedly are substantial and beneficial to clean energy projects) is the key question.

clean energy, Clean Water Act, Endangered Species Act, ESA, NEPA, permitting reform, renewable energyrtification, Section 401 certification