In the ongoing congressional wrangling over how to streamline and accelerate permitting for energy projects and transmission, Sen. Tom Carper (D-Del.) has lobbed a new, largely progressive proposal into the mix, with a strong focus on clean energy and environmental justice.

Labeled a “discussion draft,” the Promoting Efficient and Engaged Reviews (PEER) Act incorporates some of President Joe Biden’s permitting priorities, such as using “programmatic,” regional environmental reviews to cut time frames and establishing chief community engagement officers at federal agencies involved in permitting. But it also goes several steps further. (See Podesta Lays Out Biden’s Priorities for ‘Permitting Reform’.)

While Republican lawmakers have advocated for a narrow interpretation of environmental impacts in reviews required under the National Environmental Policy Act (NEPA), Carper wants these studies to look at the potentially positive environmental effects of a project, “including greenhouse gas reductions,” according to a summary of the bill. It would require that consideration also be given to indirect and cumulative impacts, as well as the “foreseeable adverse effects of not completing a project.”

NEPA reviews would also have to include “meaningful public involvement opportunities” and community impact reports to address environmental justice concerns, according to the summary. It would also allow a federal agency to require a developer to include a community benefits agreement as part of an environmental review.

Such agreements generally specify certain social and economic benefits, such as jobs and job training, that a community affected by a project will receive.

The bill also calls for $500,000 to be allocated for a feasibility study of setting up a single online permitting portal. An additional $20 million per year for five years would be authorized for the establishment of “linked interagency environmental data collection systems to standardize and facilitate the use of” data across agencies, project sponsors and the public to support environmental reviews.

To ensure adequate staff for permitting, the bill would provide $45 million per year, again for five years, “to fund scholarships, fellowships and research at institutions of higher learning relevant to the permitting process.” At the same time, federal agencies would be directed to “conduct human capital planning” and staff up to meet accelerated permitting processes.

In perhaps its most radical proposal, the bill would set up a process under which federal agencies could identify “commercially viable, nationally significant projects” and get them permitted and shovel-ready before opening competitive bidding for “nonfederal project sponsors” to develop them. The permitting process would also resolve any issues that might lead to litigation.

It would also promote development of clean energy projects on brownfield sites and authorize EPA to provide financial assistance to states to hire additional staff with the environmental and legal expertise needed to process them.

In a Thursday press release, Carper, who chairs the Senate Environment and Public Works Committee, said the bill would improve permitting “without undermining our nation’s bedrock environmental protections.”

Pointing to the passage of the Infrastructure Investment and Jobs Act and the Inflation Reduction Act, Carper said, “We need efficient permitting processes that allow our nation to meet our climate goals with the urgency that science demands. The PEER Act would help accelerate clean energy projects and create good-paying jobs across our country while ensuring that communities have a say in infrastructure projects.”

On Monday, Carper announced he will not run for reelection in 2024.

Five other Democratic senators joined Carper as cosponsors of the bill: Brian Schatz (Hawaii), Sheldon Whitehouse (R.I.), Tina Smith (Minn.), Chris Murphy (Conn.) and Alex Padilla (Calif.).

“It would be a huge, missed opportunity to let the transit and clean energy projects in the IRA and the [IIJA] get bogged down in our outdated and unwieldy permitting processes,” Murphy said in the press release. “If it takes a decade to get a permit to build offshore wind, expand passenger rail service or upgrade our electric grid, we won’t ever accomplish our climate goals.”

Opportunity for Bipartisanship

The PEER Act is the latest in a series of bills being offered from both sides of the aisle on the issue of permitting reform, which could become a major bargaining chip as Biden and House Republicans attempt to negotiate a package to raise the debt limit before a potential default.

The House of Representatives’ Limit, Save, Grow Act (H.R. 2811) includes the previously passed Lower Energy Costs Act (H.R. 1), with provisions that would accelerate permitting of fossil fuel projects, but without any mention of clean energy or transmission.

GOP bills sponsored by Sens. John Barrasso (R-Wyo.) and Shelley Moore Capito (R-W.Va.) aim to accelerate fossil fuel permitting or undercut NEPA and the Clean Air and Clean Water acts. Under Capito’s bill, for example, if an agency failed to complete a NEPA review within two years, the project would automatically be considered as meeting all NEPA requirements.

Sen. Joe Manchin (D-W.Va.), chair of the Senate Energy and Natural Resources Committee, reintroduced his Building American Energy Security Act, which drew some bipartisan support in the Senate in December but ultimately failed.

Points of agreement include limiting the time frames for NEPA environmental impact reports to two years, while less intensive environmental assessments would be capped at one year. A limit on litigation could also be part of any compromise: Carper’s bill would provide three years for legal challenges to an approved project — half the six years currently allowed — while Manchin’s would allow for 150 days and Barrasso’s and Capito’s 60 days.

Cross-agency coordination, with one federal agency leading the permitting on any one project and releasing a single environmental impact statement or assessment, also has general bipartisan support, as does expanding the use of programmatic reviews and categorial exclusions.

Programmatic environmental reviews can assess impacts in a specific region or a transmission corridor and then be used for multiple projects within the region or corridor. Categorical exclusions are waivers, finding that a project will have no significant environmental impacts. Carper’s bill would allow one agency to use another’s categorial exclusion after consulting with the other agency and providing an opportunity for public comment.

Flash Points

While Capito and Barrasso have both called for permitting reform to be technology- and project-neutral, their respective bills and H.R. 1 tilt heavily toward fossil fuels. Carper and the White House tilt toward renewables and zero-emission projects, as well as transmission.

Manchin’s bill goes for an all-of-the-above approach, with provisions that the president must draw up a list of 25 geographically and technologically diverse, high-priority energy projects that would also be a high priority for permitting. But his must-have is the completion of one of his own high-priority projects, the Mountain Valley natural gas pipeline.

A major sticking point may be the expanded role Democrats, including Manchin, want FERC to play in federal permitting of transmission projects, which so far the GOP has not supported. Two issues, FERC’s backstop siting authority and cost allocation, are key points in Manchin’s and Carper’s bills, as well as in ongoing debates between states and FERC. (See related story, FERC Backstop Siting Proposal Runs into Opposition from States.)

Manchin’s bill would streamline FERC’s backstop siting authority, which allows the commission to permit transmission projects of national interest in the event a state denies or does not permit such projects within a year. It also calls on the commission “to ensure project costs are allocated to customers that receive proven electricity benefits.”

Carper’s bill provides a more detailed vision of FERC’s role in transmission planning and permitting, including amendments to the Federal Power Act “to allow the United States to proactively plan and build the broad regional grid it needs.”

On cost allocation, Carper’s bill would direct FERC to “account for the full scope of benefits from transmission investments, such as renewable energy transmission and connection, reliability and resiliency improvements, and meeting decarbonization goals,” according to the summary. “Rules must require portfolio-based cost allocation and prioritize interregional cost-benefit considerations over regional ones.”

At a recent ENR hearing and in a Saturday op-ed in The Intelligencer, Manchin urged senators to put politics aside and work toward the difficult but necessary compromises needed for a bipartisan bill. He also said he would be scheduling “more sector-specific energy permitting hearings in the weeks ahead to learn more about the issues these projects face and [that] inform our work.”

But as long as permitting reform is tied to the debt ceiling debate, the possibility of finding more substantive common ground and compromises appears less likely, according to ClearView Energy Partners.

“Both sides have rolled out rhetorical postures that we regard as nonstarters,” ClearView said in a recent rundown of the permitting bills now in play. “A bigger challenge may be the limited overlap between both sides’ maximalist aspirations, as this leaves little room for a consensus mini-deal before the early June debt ceiling [deadline]. …

“If permitting reform were inevitable, its proponents would not be looking for a ‘must-pass’ bill like the debt ceiling, and if its momentum were insurmountable, it would not require a forcing event like imminent default to propel it.”