Joe Manchin’s “side deal” on permitting reform and the progressive backlash, explained

Whether the government is forced to shut down at the end of the month may hinge on Democrats’ approach to permitting reform, an issue that has divided the party in recent weeks.

Permitting is the process for getting federal approval for energy projects, including oil and gas pipelines, which often undergo extensive review for their environmental impact. It can be a long and expensive process, and while Republicans and Democrats agree that the experience could be improved, they differ on what those reforms should entail.

Sen. Joe Manchin (D-WV), a chair of the Senate Energy and Natural Resources committee who has deep ties to the coal industry, has long taken issue with the current permitting process, arguing that it’s too convoluted. This summer, he struck a deal with Senate Majority Leader Chuck Schumer: In exchange for Manchin’s backing on the Inflation Reduction Act, Schumer guaranteed a vote on permitting reforms that would streamline approval of fossil fuel and renewable energy projects.

Last week, Schumer announced that he plans to attach these permitting reforms to the short-term spending bill that’s expected to fund the government through mid-December, also known as a continuing resolution (CR). The decision has prompted pushback from more than 70 House members, including many progressives, and Sen. Bernie Sanders (I-VT).

In a letter sent to both Schumer and House Speaker Nancy Pelosi last week, House lawmakers argue Manchin’s reforms would make it easier to greenlight harmful oil and gas projects, and reduce constituents’ abilities to oppose such endeavors. Additionally, they claim that attaching the policies to a must-pass bill would force lawmakers to choose between “protecting … communities from further pollution or funding the government.”

Sanders, in a fiery floor speech last week, echoed many of these concerns, and later said that he would not vote for a CR that includes permitting reforms.

For now, it’s uncertain if Democratic opposition to the permitting reforms would be sufficient to sink a CR altogether. Although 76 House members have expressed their opposition, they have not indicated whether they would block the bill if it was put on the floor. Depending on how many lawmakers are willing to vote down the bill in the lower chamber, there could be enough Republican support to make up for those losses. Similarly in the Senate, Republican support could neutralize Sanders’s vote in opposition. It’s also possible that progressive pressure affects the final legislative text of the permitting reform, which has yet to be released.

“I don’t know how a CR vote will go if it includes the permitting rider, but the opposition is loud and only getting louder,” said Rep. Raúl Grijalva (D-AZ), the chair of the House Natural Resources Committee, in a statement. “I encourage leadership to listen to its caucus and keep us out of a shutdown standoff that nobody wants.”

What’s in Manchin’s proposed permitting reform?

While the legislative text for the proposed reforms is still being finalized, a memo that Manchin’s office circulated earlier this year has many Democrats and activists worried.

Policies outlined in that memo would put a two-year cap on environmental reviews by the government for major projects under the National Environmental Policy Act (NEPA). Currently, there is no cap on how long these reviews can take, flexibility that some activists and Democrats say is important to ensure that the communities affected have time to submit their input and have those concerns be properly evaluated. On average, a current NEPA review takes 4.5 years, according to the Council on Environmental Quality.

“Shortening the timeline doesn’t mean better review, it means worse review,” says Jean Su, the energy justice program director at the Center for Biological Diversity, who said these agencies also need more funding to properly do their jobs.

The proposed reforms would also limit the amount of time in which opponents of a project could bring court challenges to its approval, another effort that activists see as curbing the opportunity for a community to bring forward issues it may have with a particular buildout.

Manchin and others who would like to expedite the consideration of these energy projects say doing so would accelerate energy production, boost private sector investments, and create new jobs.

The memo also calls on the president to name 25 high-priority energy projects that would have their permitting prioritized, including fossil fuel and renewable energy efforts. The idea here is that fossil fuel projects would continue to be treated as important investments alongside other clean energy efforts. The ongoing prioritization of fossil fuels, however, is a chief issue for progressives who see expenditures on them as counterintuitive. They note that any new policy that boosts fossil fuel production is one that ignores the severity and root of climate change.

“At a time when climate change is threatening the very existence of our planet, why would anybody be talking about substantially increasing carbon emissions and expanding fossil fuel production in the United States?” asked Sanders in his floor speech.

Finally, the memo proposes requiring the federal government to take the action needed to complete the Mountain Valley Pipeline, a controversial 300-mile natural gas pipeline that extends from West Virginia to Virginia, which has had multiple permits rejected by the courts due to its effects on the environment.

This specific provision has prompted massive pushback from activists, hundreds of whom visited the Capitol last week. They argue that if included in the final bill, it would amount to the federal government overruling both community concerns about the pipeline’s impact as well as pushback from the courts.

A separate memo shared among Senate Democrats has stressed how an expedited permitting process could help certain renewable energy projects, though Su says permitting reform would be more likely to benefit fossil fuel projects, which typically face more extensive permitting delays because of the degree of review needed. This second memo suggests that permitting changes could more efficiently establish interstate transmission lines for electric power, which will be needed to fuel the country’s shift to clean energy.

Democrats opposed to Manchin’s proposal, however, seem largely unswayed by this claim, and are more focused on how its provisions could boost fossil fuel projects.

The fate of the permitting reform — and the CR — is uncertain

Depending on how many Democrats vote against a CR with permitting reforms attached to it, the legislation could still pass the House and Senate with Republican support.

Thus far, Sanders is the only senator who has committed to voting against the bill. Because the CR would need 60 votes to pass, backing from 11 Republican senators could advance the measure. In the past, GOP members have supported permitting reform, so it’s possible they’d be open to providing these votes.

This week, Sen. Shelley Moore Capito (R-WV) unveiled a Republican bill on permitting reform, signaling GOP interest in the subject though she criticized Democrats for not including Republican input in Manchin’s deal. Like Manchin’s proposal, Capito’s bill is aimed at making environmental reviews faster and would support the completion of the Mountain Valley Pipeline.

The CR faces more uncertainty in the House because of the number of Democrats who have pushed back on permitting reforms. If all 76 Democrats who expressed concern vote against the bill, leaders would need to bridge that gap with a sizeable number of GOP votes.

Grijalva has also unveiled House legislation aimed at improving the permitting process, called the Environmental Justice for All Act, which would require the government to consider additional health impacts in its reviews of different projects. It’s not yet clear if some provisions in that bill could be worked into Manchin’s proposal in a compromise aimed at winning over House Democrats.

House Democrats’ willingness to vote against a CR is also still up in the air. Previously lawmakers like Grijalva and Rep. Jared Huffman (D-CA), chair of the Subcommittee on Water, Oceans and Wildlife, have said they don’t feel bound to the deal between Democratic leaders and Manchin because they weren’t involved in making it.

“The House never promised Joe Manchin this would be part of funding the government. That’s absurd,” Huffman previously told E&E News.

If the final legislative text addresses some of the expressed concerns, lawmakers could potentially become more open to passage, especially as they seek to avoid a government shutdown. At this point, however, they remain focused on trying to get the permitting policies out of the CR and into a standalone vote.

“Give us a clean CR and let these dirty permitting provisions stand up to congressional scrutiny on their own,” Grijalva has said.