The side deal to the climate accord between Senate Majority Leader Chuck Schumer (DN.Y.) and Sen. Joe Manchin (DW.Va.) includes a compromise that would change how states issue the permits from the Clean Water Act, which could make it easier for developers to build pipelines, according to a draft text reviewed by Bloomberg Law.
Schumer and Manchin agreed to amend Section 401 of the Clean Water Act to require states to make a decision within one year of an application for certification, whether to grant it, grant it with conditions, refuse or waive certification. Section 401 gives states and tribes the power to limit or reject projects that could pollute lakes, rivers and other waters protected under the law.
“We need that kind of certainty,” said former Federal Energy Regulatory Commission Chairman Neil Chatterjee, now a senior adviser at Hogan Lovells. “Project developers were kept in limbo. I took care of that when I was at FERC…[states] playing games with the clock and leaving the project sponsor in complete limbo.
If a state is forced to make a quick decision, “yes or no, then the sponsor of the project – whether it’s a fossil fuel project or a clean energy project – knows what’s next.” steps and what his legal recourse options are,” Chatterjee said. . “Whereas today they can be totally kept in limbo.”
One of the broad concepts agreed to by the two lawmakers is language that would require states and tribes to publish clear requirements for water quality certification applications, or else not follow federal rules.
The language aims to create more predictability and reduce unachievable gaps in permitting criteria between different states, all with different hydrological and riparian sensitivities, according to Alex Herrgott, who provided technical assistance during the White House negotiations and in Congress. Herrgott headed the federal permit office during the Trump administration.
While developers and states still disagree on what criteria some states require that go beyond what’s set out in the Clean Water Act, “most developers will compromise on a set of rules of conduct applied consistently, as long as they are predictable and reasonable, so there are no surprise decisions years into the project,” said Herrgott, who is now president of The Permitting Institute, a pro-development organization.
Herrgott said states’ rights “are essential,” but “the predictability of projects that cross multiple states is paramount to us being able to meet both parties’ energy goals.”
David Ross, who led the EPA’s water office during the Trump administration and is now a partner at Troutman Pepper Hamilton Sanders LLP, said it was ‘nice to have differences when you cross borders States. The problem is, are the core concepts similar enough for people to tackle? Is it related to water quality? What are the known rules of the road? »
Chatterjee agreed that the type of language envisioned “would better align the process to get the necessary infrastructure that we need.”
Senators’ agreement to seek passage of a provision that would ultimately refine the scope of federal permits is separate from the agreement on a broad climate and fiscal package announced last week.
Schumer then said lawmakers, along with House Speaker Nancy Pelosi (D-Calif.), agreed to try to add the leave provision in a continuing resolution — an interim spending measure to fund the government if regular supply bills are not passed. before the end of the financial year on September 30.
Environmentalists, however, were quick to criticize the Manchin and Schumer side deal. The deal would also seek to speed up the process for the Mountain Valley Pipeline, a $6.6 billion U.S. gas pipeline project that has been repeatedly stalled due to environmental approvals.
Abigail Dillen, president of Earthjustice, vowed to “fight this attempt to weaken basic environmental review laws when the time comes”.
“The price to pay for Manchin’s vote is looking more and more like an oil and gas wish list,” said Jean Su, director of the energy justice program at the Center for Biological Diversity. “This clandestine agreement threatens communities and the environment, while sidelining state and tribal input. Chief Schumer and Pelosi should reject these fossil fuel giveaways.
Sen. Shelley Moore Capito (W-Va.), the top Republican on the Senate Environment and Public Works Committee, told reporters Tuesday that a pending vote to reverse changes made by the Biden administration to the National Environmental Policy Act will provide important signals about how supportive members will be about the Manchin-Schumer case.
“Let’s see how they vote on this initiative initiated by Senator Sullivan, because I think this is going to be the indicator of their seriousness in keeping what they say is a promise that was made,” Capito said, referring to the senator. Dan Sullivan (R-Alaska), who is spearheading a move to use the Congressional Overhaul Act to claw back NEPA changes from the White House.