I promised to find a comprehensive description of the Manchin-Barrasso bipartisan permitting bill when the dust had settled and the permitting reform folks had time to analyze it. The Bipartisan Policy Center does good work on permitting reform, and sure enough, they have a comprehensive report on it, helpfully titled “the Energy Permitting Reform Act of 2024: What’s in the Bill.”.
The Energy Permitting Reform Act of 2024 (EPRA) presents a crucial opportunity to accelerate and streamline the energy infrastructure permitting process that is vital for the U.S. to ensure affordable, reliable energy while reducing emissions.
As with all compromise bills, stakeholders will probably like many provisions but dislike others. Luckily for those on both sides of the aisle, the legislation has more to like than to dislike.
If you care about:
energy affordability and reliability, the leasing and transmission provisions will help achieve that
supply chains for clean technology, the mining provisions will help accomplish that
reducing emissions, the provisions on transmission, geothermal resources, and renewables, along with the categorical exclusions, will help with that
project certainty across the board, the judicial review provisions are important
This explainer summarizes the key provisions in the EPRA and contextualizes their importance.
There’s a great deal in the BPC report, including many details of interest to the FS and BLM. Folks may be interested in:
Judicial Review
Judicial review allows individuals and groups to legally challenge federal actions, including agency decisions on permits and siting under federal law. Under current law, aggrieved parties can file lawsuits for up to six years after an agency makes final permitting decisions on energy projects. This creates a legal limbo that drives up costs, even if developers ultimately prevail in the legal challenges, as is usually the case. Both fossil and renewable projects face these legal challenges; in fact, a recent study found that solar projects face the highest litigation rate. EPRA contains three major provisions concerning judicial review:Reduced Statute of Limitations (Section 101): Reduces the deadline from six years to 150 days (five months) for filing lawsuits against an agency action approving or denying the permitting of an energy or mineral project. This change will help reduce uncertainty, so project developers know if they have a final yes or no to proceed. The tighter deadline is on the aggressive, but reasonable, side of what members of Congress have been considering. It is shorter than the two-year deadline that exists for transportation projects but longer than the 90-day deadline proposed in the GOP’s energy and permitting bill, H.R. 1, the Lower Energy Costs Act. That bill passed the House in 2023 in a 225-204 vote.
Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.
Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.
This bill is only for energy projects, but this intervention might be helpful for fuel treatment projects.
Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.
I don’t know whether judges would go along with the expedited review.. seems sort of separation of powers-ish. But the Senate has access to many wise and knowledgeable attorneys so..
Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.
I figured I’d pick out some new CEs envisioned by the bill.
Transmission CE
Categorical Exclusions for Certain Transmission Activities (Section 209): Directs DOI and the Department of Agriculture (USDA) to create new categorical exclusions for the following activities related to transmission: building transmission facilities within rights-of-way corridors; upgrades to existing transmission and grid infrastructure within rights-of-ways or on previously disturbed land; and deployment of energy storage technologies on previously disturbed lands. These categorical exclusions currently exist at DOE but not at DOI or USDA, which are more often responsible for reviewing projects in need of the exclusions. Sharing relevant categorical exclusions across agencies was a key recommendation in BPC’s Smarter, Cleaner, Faster Infrastructure Task Force Report, The Role of Categorical Exclusions in Achieving Net Zero.
Geothermal CE
Geothermal Categorical Exclusions (Section 208): Directs DOI and USDA to adopt categorical exclusions under NEPA for the exploration of geothermal resources on federal lands. This measure codifies and expands BLM’s recent actions and adds parity to oil and gas categorical exclusions in existing statute.
I thought this aside was interesting.
Some environmentalists will be concerned about the revised schedules for oil and gas leasing. It is important to note, however, that increased domestic oil production does not necessarily translate to increased global oil production, just as reduced domestic oil production does not necessarily lead to reduced global oil production. It is a global market, and other countries ramp production up or down in response to the basic economic law of supply and demand.
This seems like an important point that sometimes gets lost. We might expect this topic to heat up (again) as the election nears.