Top Senate Republicans and Democrats are returning to the drawing board on permitting reform, a subject that has eluded them for years.
But if they manage to clinch a deal this time, the tradeoff could look much different, as Democrats hold a weaker hand under Republican control of Washington.
“I think there’s a willingness to look at permitting again in the larger context of what’s real,” said Sen. John Hickenlooper (D-Colo.), a key negotiator last year.
Leaders of the Senate Energy and Natural Resources and Environment and Public Works committees have been meeting and texting over the thorny problem of energy and infrastructure project delays.
Lawmakers in both parties say they want to fix that, but there remain major roadblocks left unresolved following the collapse of last year’s efforts.
“I think the key now is to sit down with some Republicans and Democrats and say what’s real now in the next two years?” Hickenlooper added. “What could we actually get done? Does that include critical minerals? Does that include transmission? Does that include permitting? We need to go down — and we are going down — that list.”
With Republicans now in power, Democrats could be forced to acquiesce on reopening decades-old environmental laws like the National Environmental Policy Act, which the party has long deemed sacrosanct.
Under NEPA, government planners must consider the impacts to any major infrastructure or energy project funded or authorized by federal officials, causing projects of all kinds to endure delays.
Substantive laws like the Endangered Species Act or the Clean Water Act, governing pipelines and other energy infrastructure, could also be on the table.
While Republicans may try to achieve some minor permitting changes in their party-line budget bill, a comprehensive deal would require 60 votes in the Senate.
Some Democrats seem increasingly willing to swallow environmental law changes in exchange for legislation to address climate change — namely by building out transmission or addressing problems with critical minerals for batteries and renewable energy technologies.
“I think we’re at a stage where it’s probably premature what it might look like,” said Sen. Sheldon Whitehouse of Rhode Island, the top Democrat on the Environment and Public Works Committee.
“Obviously, a priority for Republicans is NEPA changes and the question is — is that just to help polluters or are there other ways to really generate savings and efficiency? And the devil’s going to be in the details on that.”
His remarks were something of a shift from last month, when he declared during a Senate hearing he would not get close to a permitting deal amid the Trump administration’s “lawless regard” for the will of Congress and the courts.
“We’re starting fresh … to see if we can scope out a framework that makes sense to pursue,” said Whitehouse, who has been taking a leading role in fighting administration cuts to regulations and environment spending.
EPW Chair Shelley Moore Capito (R-W.Va.) said she’s been communicating regularly with Energy and Natural Resources Chair Sen. Mike Lee (R-Utah) about permitting.
“We’re going to have to see,” she said when asked what the tradeoffs might be. “We have Republicans and Democrats coming at this from different angles, but the lack of permitting and the time it takes — is a uniting purpose.”
New players, issues
For years, “permitting reform” has been shorthand for accelerating permits for oil and gas operations. But Democrats grew more interested in striking a deal to fully unleash the renewable energy potential in their 2022 climate law, the Inflation Reduction Act.
They’ve been increasingly willing to defy environmental groups that remained firm on the idea that bedrock environmental laws were necessary to protect communities from polluting projects in their neighborhoods.
The bipartisan deal that collapsed last year included transmission build-out in exchange for oil and natural gas industry benefits, primarily restricting the window for legal challenges on energy projects.
Republicans, coming off their big November win, pushed for more significant NEPA changes. Senate Democrats, led by retiring EPW Chair Tom Carper (D-Del.), said they were willing to make “major concessions,” including on lawsuit limits and giving states more power.
Asked whether Democrats could trade NEPA changes for something other than transmission, Hickenlooper said, “I don’t know — you don’t know if you don’t discuss it. If we are going to address climate change, we have to go faster for a lot of things. It’s not just transmission.”
Asked if he thought lawmakers would pick up where they left off last December, Whitehouse said, “Not particularly. We’re still exploring what the prospects are.”
Some key players are not in Congress anymore, namely former Energy and Natural Resources Chair Joe Manchin (I-W.Va.) and Rep. Garrett Graves (R-La.). Former ENR ranking member John Barrasso (R-Wyo.) is out of the mix as he ascended to GOP leadership.
If a deal is to be struck, Whitehouse, Lee and, Energy and Natural Resources ranking member Sen. Martin Heinrich (D-N.M.) will play more central roles. House Natural Resources Chair Bruce Westerman (R-Ark.) said he remains engaged on the matter.
In the House Energy and Commerce Committee, leaders like Chair Brett Guthrie (R-Ky.) want to secure legislation to address grid reliability.
Hickenlooper noted the 1872 mining law has never been updated, and that could be part of a deal. ENR recently held a hearing on several mining-related bills.
“We have the most environmentally friendly mining standards in the [world],” he said. “Have they really been updated? Do we have a national law? No, but if we put them in place as a national law that would become a template for the rest of the world.”
