Even before the Senate on Thursday passed the Fiscal Responsibility Act (H.R. 3746) — the bipartisan deal to lift the U.S. debt ceiling that also included provisions related to energy infrastructure permitting — lawmakers on both sides of the aisle were talking about the work still ahead to truly streamline and accelerate the process and construction.

Signed by President Joe Biden on Saturday, the new law sets time and page limits on environmental reviews under the National Environmental Policy Act (NEPA) and calls for designation of a single federal agency to lead reviews and issue the final environmental evaluation, provisions that already had general bipartisan support. It also expands the use of “categorical exclusions” exempting projects from NEPA evaluations but does little to advance the buildout of vitally needed interregional transmission, a top Democratic and industry priority. (See Debt Ceiling Bill Provides ‘Mini-deal’ on Permitting.)

“As it sits right now, I feel like we just lost two years,” Rep. Sean Casten (D-Ill.), co-chair of the House Sustainable Energy and Environment Coalition, told E&E News on Wednesday.

While crediting Biden for getting the deal done and averting a potentially disastrous U.S. default, Casten said White House negotiators “totally messed up the transmission piece, and they didn’t deal with us on the level about what they had. And so, we didn’t know how bad they botched it until after we saw the text.”

Casten was referring to the FRA’s call for a study on the need for transmission to support interregional transfers of power for grid resilience and reliability, which NERC and FERC now have two and a half years to complete.

“There is absolutely no good reason why anybody needs to spend two years studying a problem that has been asked and answered 15 times,” Casten told E&E after his attempt to amend the bill was killed in the House Rules Committee.

Casten was one of several lawmakers quoted in post-deal analyses of the next moves, if any, on “permitting reform,” as the issue is commonly referred to.

On the Republican side, Sen. Kevin Cramer (R-N.D.) saw the permitting issue going “one of two ways.”

“One way might be to check the box — ‘We did this’ — and then never think about it again,” Cramer said, according to The Hill. “The other possibility would be that we create a little bit of momentum and say, ‘OK, now let’s get serious and drill down a little bit.’ I hope it’s the latter.”

Similarly, Sen. Shelley Moore Capito (R-W.Va.), ranking member of the Senate Environment and Public Works (EPW) Committee, described the FRA as a “jumping point to start off again in our bipartisan talks,” The Hill reported. Her particular target is “judicial reform”: cutting down the six-year time frame now allowed for legal challenges to NEPA reviews, which the FRA did not include.

Industry trade groups also urged Congress to move ahead with more comprehensive initiatives on permitting and transmission.

Christina Hayes, executive director of Americans for a Clean Energy Grid, said her organization “believes that setting timelines for federal environmental reviews is a helpful first step but is only the beginning. While we do not believe that an interregional transmission study is needed, we hope that it can be completed quickly, building on efforts already underway at FERC, to ensure buildout of the transmission we need to keep the lights on.”

The American Clean Power Association seconded the motion. “ACP is appreciative of the steps taken to include much-needed reforms to improve efficiency of the permitting process for clean energy projects,” said CEO Jason Grumet. But “it’s critical that Congress build upon these initial steps and tackle comprehensive, meaningful reform to improve our nation’s clean power transmission capabilities and bring about the clean energy future America needs.”

BIG WIRES Nixed 

A drive for bipartisan permitting legislation had been a key focus in both the House and Senate in May, before the tense negotiations on the debt ceiling overwhelmed work on other issues in Congress and at the White House.

Biden issued a fact sheet outlining his permitting priorities, and Sen. Joe Manchin (D-W.Va.), chair of the Senate Energy and Natural Resources (ENR) Committee, declared his intention to have bipartisan legislation hammered out before Congress begins its August recess. (See Podesta Lays out Biden’s Priorities for ‘Permitting Reform’.)

House Republicans’ original debt ceiling package, the Limit, Save, Grow Act (H.R. 2811), included a previously passed energy bill, the 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.

Capito and ENR Ranking Member Sen. John Barrasso (R-Wyo.) also introduced bills primarily focused on accelerating the leasing and permitting of oil and gas projects and slashing the window for NEPA legal challenges from six years to 60 days.

On the Democratic side, Manchin and EPW Chair Tom Carper (D-Del.) each introduced bills that called for two-year time limits on NEPA reviews but also contained provisions on transmission. Manchin’s bill would cement FERC’s authority to permit transmission deemed in the national interest. Carper’s would authorize millions in federal funding to support broad community engagement in permitting processes, as well as training programs to ensure federal agencies are able to hire staff with the needed expertise. (See Carper Throws Progressive Bill into Senate Permitting Debate.)

Sen. John Hickenlooper (D-Col.) and Rep. Scott Peters (D-Calif.) added to the ongoing debate with their Building Integrated Grids With Inter-Regional Energy Supply (BIG WIRES) Act, which would require transmission planning regions, as defined by FERC, to be able to transfer at least 30% of their peak demand between each other. The bill calls on regions to pursue a range of options to achieve this target, from building new transmission and upgrading existing lines to cutting demand through energy efficiency.

BIG WIRES was on the table as part of the debt ceiling negotiations, according to The Washington Post, but was nixed by Reps. Cathy McMorris Rodgers (R-Wash.) and Jeff Duncan (R-S.C.), arguing that Republicans needed more time to review the bill. McMorris Rodgers is chair of the House Energy and Commerce Committee, while Duncan leads the committee’s Energy, Climate and Grid Security Subcommittee.

The law’s much-criticized transmission study was the result.

Without directly mentioning his bill, Hickenlooper expressed disappointment with the FRA’s permitting provisions. “I don’t feel that we got what I’d hoped we would get, and I feel like we gave up a little more than I would’ve wanted to give up,” he told E&E.

Green Pivot Ahead?

The FRA’s provisions calling for expedited completion of the Mountain Valley Pipeline (MVP) were another flashpoint during Senate debate on the bill Thursday. The 303-mile, 94% complete natural gas pipeline has been a top priority for Manchin, who until now had been unsuccessful in getting it into must-pass legislation.

Sen. Tim Kaine’s (D-Va.) amendment cutting the project out of the bill was voted down, with some Democrats saying they agreed with Kaine but did not want to threaten quick passage of the FRA, The Post reported.

A key question now is whether, with completion of the MVP finally secured, Manchin will still push for a more comprehensive bipartisan permitting bill. As ENR chair, he has a formidable track record as a gatekeeper on issues and nominations he does not support, and he is facing a potentially tough re-election campaign against West Virginia Gov. Jim Justice (R) in 2024.

White House press secretary Karine Jean-Pierre on Friday included permitting in a list of issues Biden still hopes to tackle, but the president did not mention it in his prime-time address to the nation that evening.

Administration officials speaking at The Economist’s Sustainability Week US conference in D.C. on Wednesday stressed that work on permitting and transmission will continue.

“The job [on these issues] is definitively not done,” said Andrew Mayock, federal chief sustainability officer. “Permitting remains a really important piece of the agenda … and I think it’s safe to say that there is more to do, and the White House will continue to push on that until we get where we need [to be].”

Answering a question about the FRA-mandated transmission study, Gene Rodrigues, the Department of Energy’s assistant secretary for electricity, said the study could have a positive impact by bringing “more people to the table to start thinking about what grid modernization means, and it’s not changing out just poles and wires. It’s about everything to do with how we plan, operate and invest in our system.”

But, he said, “does that mean … everything else stops, and then we wait for that [study] to be done? Absolutely not. … Let’s bring more people into the conversation, but let’s continue moving forward with what needs to be done to support the reliability, resilience, affordability and security of America’s grid.”

Industry analysts ClearView Energy Partners even see a possible “green pivot” now that the debt deal is done and “the White House may not worry as much about alienating fossil-friendly Democrats or the GOP. … The White House may also seek to balance its support for MVP with new strictures on fossil fuels.”

ClearView pointed to a Friday notice from the Interior Department withdrawing 336,404 acres surrounding Chaco Culture National Historical Park in New Mexico from potential mineral leasing and mining. The park marks the site of a once-thriving center of Pueblo culture, which existed between the 9th and 12th centuries.

‘Reasonably Foreseeable’

The implementation of the FRA and its likely impacts on permitting and clean energy deployment in general also will likely become a matter of close political scrutiny in the months ahead, especially for GOP lawmakers.

While the bill calls for slashing time for NEPA reviews, from more than four years to two years for a full environmental impact study, hitting those deadlines may prove challenging.

The permitting provisions of the law are largely based on the Building U.S. Infrastructure through Limited Delays & Efficient Reviews (BUILDER) Act, which Rep. Garret Graves (R-La.) first introduced in 2021.

A chief GOP negotiator on the debt deal, Graves has said the new law would cut not only the time, but also the scope of NEPA reviews to “reasonably foreseeable environmental impacts,” language taken from the BUILDER Act.

Speaking at a press conference announcing the deal May 28, Graves said, “NEPA has grown to just study all these things that don’t have anything to do with the environment, which I would argue … has worked against the protection of the environment. So, we’re trying to refocus the scope back on that, on the environmental impacts, and making sure we get the best environmental outcomes.”

However, while the FRA incorporates many provisions of the BUILDER Act, it does not include that bill’s definition of “reasonably foreseeable environmental impact.” As defined in the U.S. Code, it is one that is “sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.” Whether this definition is broad enough to include climate change or public health impacts will likely be a matter of ongoing debate and litigation.

The impact of the FRA’s page limits also is uncertain. The law does limit each EIS to 150 pages, or 300 for “extraordinarily complex” projects, but it places no limits on appendices for such reports, which can run into hundreds or even thousands of pages. For example, the Bureau of Ocean Energy Management’s recently released final EIS for the Ocean Wind 1 offshore wind project comes in four volumes, with 570 pages for the EIS itself (Vol. 1), plus 1,760 pages of appendices (Vol. 2-4). (See BOEM: Major Visual, Scientific Impacts from NJ’s 1st OSW Project.)

Another question raised at The Economist conference was whether the FRA’s clawback of $20 billion in Inflation Reduction Act funding for the Internal Revenue Service might affect the agency’s ability to deliver the needed guidance for all the IRA’s clean energy tax credits.

Heather Boushey, a member of the White House Council of Economic Advisers, cautioned that the clawback could send “a signal that that’s maybe a cookie jar we can keep pulling from.”

“It is clear in the short term — at least we are hearing from our Treasury colleagues — that they will be able to do their work, even with these cuts,” Boushey said. “But I do think that we, as people who are concerned about climate, given how much of this is being done through the IRS, we need to be making sure that [Treasury] is on our checklist of agencies that we are watching very closely.”