Is Permitting Reform Paternalistic? And- Let’s Discuss: Manchin’s Permitting Reform Bill Specifically

This proposed bill language of the current bill would affect the FS and BLM with regard to certain projects (not of the veg management persuasion). The link takes you to the full bill, the the section by section, and a summary of the changes.


Sidenote: The permitting reform discourse, as opposed to the permitting reform bill.  As Marcela Mulholland of Data for Progress pointed out at the Breakthrough Institute conference that I posted about here,  the (at least “progressive”) discourse around permitting reform is not very productive.  It’s like the concept itself is wrong (everything is currently perfect), which seems kind of irrational.  What human, let alone government, activity, can’t be improved?   Why is the concept, as opposed to the reality, such a flashpoint? A person, apparently on the New York State Climate Action Council, and I had a discussion on Twitter that reflects this.. I actually thought it was kind of funny.


Oh, and I thought this op-ed on the Hill by Catherine Wolfram “Progressives should have supported Manchin’s permitting reforms: Here’s why” had some good points.

Indeed, the arguments that the progressives make against carbon pricing are exactly why they should have supported Manchin’s permitting reforms. Blocking fossil fuel projects makes it more costly to deliver energy with existing fossil fuels. In effect, it creates a kind of carbon price, just one that’s haphazardly applied, usually extremely high, and where the revenues accrue to fossil fuel producers instead of the government. At the end of the day, low-income households’ energy bills go up.


But let’s move on to what’s specifically in the bill.

Projects are defined as “those projects for the construction of infrastructure to develop, produce, generate, store, transport, or distribute energy; to capture, remove, transport, or store carbon dioxide; or to mine, extract, beneficiate, or
process minerals which also require the preparation of an environmental document under the NEPA and an agency authorization, such as a permit, license or other approval.

It seems to me as if it’s mostly speeding up things (documents and disagreements and litigation) that can otherwise languish (and don’t we know it…). That’s what it says in the summary.

WHAT THE BILL DOES: Accelerate, not bypass. The bill will accelerate permitting of all types of American energy and mineral infrastructure needed to achieve energy security and climate objectives, without bypassing environmental laws or community input.

Here was the one I thought will be interesting to observe (if this passes):

Sec. xx15. Litigation Transparency
Topline Summary:
• Requires public reporting and a public comment opportunity on consent decrees and settlement agreements seeking to compel agency action affecting energy and natural resources projects.

Detailed Summary:
• Subsection (a) defines civil actions, consent decrees, and settlement agreements covered under this section.
• Subsection (b) requires that agencies publish online the notice of intent to sue and the complaint in a covered civil action not later than 15 days after receiving service. The subsection also requires agencies seeking to enter into a covered consent decree or settlement to publish online the proposed consent decree or settlement and provide an opportunity for public comment not later than 30 days before filing the consent decree or settlement with a court.
• Subsection (c) requires an agency to consider public comments received on a proposed consent decree or settlement agreement under subsection (b) and authorizes agencies to withdraw or withhold consent if the comments disclose facts or considerations that indicate that the agency’s consent is inappropriate, improper, inadequate, or inconsistent with any provision of law.

What do you all think about this, and about other parts of the bill?

5 thoughts on “Is Permitting Reform Paternalistic? And- Let’s Discuss: Manchin’s Permitting Reform Bill Specifically”

  1. The problem is that both Congress and Administrations make exceptions to NEPA and that results in a uneven playing field for different type projects. I always thought the 14th Amendment should apply to NEPA projects.

    One reason I retired is that a Federal judge thought running about a hundred horses and mules for three months in the Pasayten Wilderness after 100 years was a major federal action requiring an EIS. Just plain silly.

    At the same time the Obama Administration allowed BP’s Deepwater Horizon to drill in the Gulf of Mexico with 26 page CE. Full disclosure my wife inherited some BP stock from her grandparents. I was stunned that the Obama Administration thought that the first of its kind, Deepwater Horizon project merited only a CE.

    NEPA is a political instrument that has outlived its use full life. Not a fan of exceptions or speedups for energy projects while requiring EIS for horse outfitters.

  2. This post proves that when it comes to environmental justice you just don’t get it.

    For instance, your gotcha moment in the Twitter thread you are compelled to feature in your post is all about asking EJ stakeholders if their groups offered comment on a specific topic, one that inevitably is important, yet is also esoteric and technocratic (as NEPA tends to be). Yet, fundamental to working with frontline communities is knowing that organizations and individuals with scarce resources and that are dealing with an unending tidal wave of threats to public health and the environment in their communities are simply NOT going to be able to comment or engage on everything, nor even come close. There will always be important issues that are missed, just because they cannot be everywhere at once, even if you think the issue is important. When you infer that their knowledge or experience is inadequate when they do not comment on what you deem important you are being paternalistic.

    Thus your ‘gotcha’ moment with these activists on Twitter where you think you are making a point about how ‘right’ you are about permitting reform or permitting in general, as well as proving how wrong they are on permitting reform because you can catch them on a topic that they did not provide comment on is a case study in the very paternalistic pattern around NEPA reform that the original Twitter post was exposing. You think you did something smart, but all you really did is show in a snarky way that when it comes to supporting groups on the frontlines that are fighting to end environmental racism you just don’t get it.

    • Hmm. I guess we’ll have to disagree on that. I’m not saying I’m right.. I’m seeing a landscape of possibilities of what PR (permitting reform) might mean. I don’t know where those folks are on that landscape or whether they are against some concept they have made up about what it is.. and what that is?
      If I disagree with someone, am I being paternalistic? Or maybe it should be maternalistic? Can’t I just disagree? Because I disagree with people on this blog all the time and folks usually don’t accuse me of being paternalistic. As to community groups with scarce resources, I think my resources are scarcer than a law school prof or a prof in Tokyo. Are they on “the frontlines fighting to end environmental racism”?

      I guess my point, which might be the same as Marcela’s, is that (some-these, for example) progressive folks won’t engage on the actual issue- even to define what they mean by it. And I’m not likely to “get it” if they won’t engage.

    • It may be 2022, but let’s remember that posting on Twitter is not “fighting to end environmental rascism.” Social media usage is not activism, it’s the method by which unmotivated folks get to weight in on an issue and feel good about themselves while contributing nothing to the solution.


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