Permitting reform would de-fang bedrock environmental laws

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In May of 2023, the Biden administration’s Bureau of Land Management issued a final approval to Pattern Energy for its long-planned SunZia transmission line, which would carry wind power from eastern New Mexico to a major grid hub in the Phoenix area, where it could then be transmitted across the Southwest.Clean energy advocates lauded the move, which would enable Southwestern states to fill in the power gap left when the sun goes down by using something other than natural gas, thus reducing the grid’s carbon footprint.

The approval came after 17 years of review by various federal agencies, and after a previous 2015 BLM approval was scrapped and the project sent back to the drawing board after New Mexico regulators balked at its potential impacts to migratory birds. The climate crisis needs to be addressed now, advocates said, and there wasn’t time for clean energy-enabling projects to have to wade through the bureaucracy for another decade or so — only to be potentially blocked by a post-approval lawsuit. SunZia was held up as a prime example for why permitting reform for such projects was needed, and advocates urged Congress to clear a speedier path through all the red tape.

The call was finally heeded in September, when a group of Republican and Democratic senators, including Sens. Martin Heinrich, D-N.M., once known as a public-lands champion, and hard-right Mike Lee, R-Utah, introduced the Bipartisan American Affordability and Jobs Act to streamline and accelerate federal environmental reviews and permitting for major projects.

Groups as disparate as Americans for a Clean Energy Grid, the American Petroleum Institute, climate hawks and the Breakthrough Institute — which promotes technological solutions to environmental problems — supported the legislation. The Natural Resources Defense Council praised the bill’s transmission-related provisions, which the Columbia Center on Global Energy Policy estimated would cut the average permitting timeline by 96 months, an “essential component” of decarbonizing the power grid, while also forcing data centers to pay for any grid upgrades those energy-gobbling facilities might require.

But one person’s red tape is another person’s environmental safeguard. In order to achieve its goal of accelerating transmission and other energy projects, the legislation takes aim at bedrock environmental laws designed to protect human health and the environment while ensuring that the public has a say in how its land and resources are managed — laws like the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act and the National Historic Protection Act. To get Republicans on board, the bill was expanded to apply to fossil fuel projects as well as clean energy.

But ecology-minded green groups and the conservation community, tribal nations and progressive federal lawmakers warned that gutting these laws could seriously impact communities, landscapes and cultural sites. The Western Environmental Law Center’s Erik Schlenker-Goodrich denounced the bill as a “turd grenade” on social media, and even the NRDC said that the provisions weakening environmental laws were “deeply flawed,” and vowed to get them changed. The Senate Committee on Energy and Natural Resources is slated to consider the bill shortly after Congress returns to session on Nov. 9.

Here’s a rundown of some of the more significant ways that the proposed bill could affect major environmental laws, and what they might mean. Keep an eye out for a separate story on suggested changes to the National Historic Preservation Act, which protects historic, cultural and archaeological sites as well as tribal consultation, coming soon.

National Environmental Policy Act (NEPA)

NEPA, signed into law in 1970, requires federal agencies to consider the potential environmental impacts of major federal developments through environmental impact statements (EISes) or environmental analyses (EAs). While it is considered the country’s bedrock environmental law, it is also frequently blamed for project delays and would be subject to the most significant changes under the permitting reform bill.

The median time for the completion of an EIS and issuance of a final decision is currently about 4.5 years. The 2023 Fiscal Responsibility Act limited the EIS portion to two years, but imposed no timeline on a final decision. The current draft of the permitting reform speeds up federal authorization from all participating agencies, including the lead one. The Bureau of Land Management, for example, would need to issue a decision within 45 days of an EIS on a solar farm or data center on its land. This would significantly accelerate project timelines and dramatically reduce the post-EIS public-input period.

Once a decision is made, the permitting reform legislation also limits who can legally challenge it, shortening the statue of limitations for lawsuits as well as setting a higher bar for who has “standing” to bring a suit. Even if a project still made it to court under these narrower conditions, that court would not be allowed to pause or halt construction. This means the project could go forward — and any environmental, human health or cultural impacts be realized — even while a lawsuit was pending. And if a court ruled against the agency and found it had violated NEPA, it would merely send the EIS or EA back to the agency and ask for fixes rather than vacate the approval, meaning, again, that development could continue. Michael B. Gerrard, an environmental law professor at Columbia Law School, wrote in the New York Law Journal that these changes “would pull NEPA’s principal teeth — the possibility of a court order blocking a project for violating NEPA.”

Many projects that are currently subject to NEPA review, including energy storage projects built “at or near” transmission lines, as well as the replacement, upgrading, rebuilding or modification of transmission or distribution lines, would be altogether exempt.

Clean Water Act

When a pipeline, transmission line or other project crosses over, under or otherwise affects a body of water under federal jurisdiction, the Clean Water Act’s Section 401 requires that the development be certified by the relevant states or tribal nations to protect water quality. States and tribes have used this authority to block projects like the proposed Millennium coal export terminal in Washington, or to push developers to reroute or redesign them to mitigate their impacts. The permitting reform legislation would more narrowly define the kinds of water-quality impacts that could trigger a state or tribal nation’s denial, putting the burden of proof on the state or tribe rather than on the developer.

The legislation also curtails the amount of time the Environmental Protection Agency has to veto Army Corps of Engineers Clean Water Act permits for major projects, a power previously used to halt the Pebble Mine in Alaska in January 2023. Shortening the time frame also precludes new administrations from blocking projects approved under a previous one.

Endangered Species Act (ESA)

Permitting reform would also hamper judicial review with tighter timelines for lawsuits that litigate ESA violations. Lawsuits would be sent straight to the D.C. Circuit Court of Appeals, rather than making their way through district courts, thereby disadvantaging the plaintiffs by cutting the amount of time they have to gather evidence and prepare for trial.

Meanwhile, the Fish and Wildlife Service’s ESA consultation time limit would be shortened from 90 days to 60, truncating its analysis of how a project could affect imperiled species. Some projects would even be exempted altogether from federal ESA reviews, with the states taking over the consultation process. This would create inconsistency from state to state, sometimes even for the same project, and could imperil endangered species in states that are hostile to environmental protections.

General Mining Law

Changes to the General Mining Law of 1872, which has allowed mining companies to ravage public lands for over a century, would make the law even more friendly to industry than it already is.

In recent years, courts have successfully scuttled major projects by using a provision in the law pertaining to mill site mining claims that limits the amount of public land that can be used to store waste. The permitting reform bill would instead allow corporations to stake as many mill sites as they want, which would open the door to them appropriating hundreds or even thousands of acres of public land for waste disposal and storage.

Already a flawed system

The aforementioned SunZia project is certainly a good example of how long the NEPA process can take. But it also demonstrates how the currently arduous permitting path can improve a project and yet still not be rigorous enough to protect important cultural and environmental sites. In New Mexico, for example, conservationists and state officials were able to use the process to push the developers to reroute the path to avoid harming migratory bird flyways, garnering the project — and the process — Audubon Southwest’s endorsement as a case study of how permitting works.

But in Arizona, when Indigenous nations and conservation groups tried to get SunZia to reroute the line away from the fragile, biodiverse San Pedro River Valley to protect birds and other wildlife along with culturally significant sites, Arizona regulators shrugged them off — not surprisingly, since they tend to be more amenable to such projects and less responsive to environmental concerns than their New Mexican counterparts.

So when Arizona regulators unanimously approved the project in November 2022, they removed any incentive for SunZia to reroute the line in Arizona the way it did in New Mexico. The BLM’s preferred route remained alongside the San Pedro River, despite the objections of tribal nations and conservationists. An ensuing lawsuit continues to work its way through the courts, but has failed to stop or pause construction — even under the current, more rigorous permitting regime.

Now the San Pedro River faces another challenge: A proposed natural gas pipeline called Desert Southwest, which would carry methane from the Permian Basin to Arizona, passing right through the Pedro River Valley north of Tucson. Under the current permitting regime, the project would be subjected to rigorous NEPA and National Historic Preservation Act reviews, while tribes and states would have more say under the Clean Water Act. But if the permitting reform legislation becomes law, the project could be exempted from these reviews, meant to protect people and places, altogether.

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High Country News is covering permitting reform and how it could impact communities. Tell us your story: kylie.mohr@hcn.org

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