ACC Action Policy Series: A Permitting Deal in Congress

We Cannot Delay American Energy Build-Out Any Longer

By Sarah Rosa

One of the most consequential losses of the 118th Congress was the last-minute failure of bipartisan permitting reform designed to uphold our world-leading environmental standards while streamlining the approval process for critical energy infrastructure and conservation projects. Though these projects continue to languish in the federal permitting process, the momentum built in the final days of the 118th Congress carries forward into the 119th.

The consensus in D.C. is clear: while many of America’s foundational environmental laws, like the National Environmental Policy Act, were well-intentioned, they are now hindering progress on our energy, emissions, and conservation goals. At a time when building and actively stewarding our land is critical to addressing the environmental challenges of our era, federal permitting has become one of the most significant barriers. Yet, as last Congress showed, reaching a bipartisan permitting reform deal is far more complicated than simply acknowledging the need for change.

To reach 60 votes in the Senate, any permitting reform package must get the support of both Republicans and Democrats. While a final product does not yet exist, and a deal is still taking shape, the following reforms should be part of any deal built on common ground.

First and foremost, NEPA must be modernized to allow America to build quickly, but also safely and responsibly. A procedural law at its core, NEPA’s highest level of environmental review regularly delays critical energy infrastructure projects by an average of four years. Compounding these delays is NEPA-related litigation, which NGOs regularly use as a tool to block projects, despite agencies winning the majority of appeals cases, ultimately confirming they were right in the first place. Ironically, forest management projects, meant to bolster the health of forest ecosystems, are the most litigated project type under NEPA. 

In July, Representatives Bruce Westerman and Jared Golden introduced the bipartisan Standardizing Permitting and Expediting Economic Development (SPEED) Act, which targets the core issues within NEPA and judicial review. The SPEED Act should be a cornerstone of any permitting reform deal.

Second, as electricity demand and prices continue to surge, building out and modernizing our grid will be essential to delivering more energy while keeping costs low. Unfortunately, the permitting timeline for transmission projects can stretch for decades. This is especially concerning given that we’ll need to at least double the size of our grid by 2050 to maintain reliability and affordability.

One of the biggest challenges for high-capacity, interstate transmission projects—critical for improving interregional grid reliability, resilience, and lowering costs—is the lack of any federal siting authority, similar to FERC’s authority over interstate pipelines. To address this, Representatives Andy Barr and Scott Peters introduced the bipartisan SPEED and Reliability Act, which would give FERC backstop siting authority for high-capacity lines that support interstate commerce, even without a NIETC designation. It would also require that the costs of the sited line be allocated only to those who benefit from lower costs and improved reliability. As currently written, the bill defines these lines as those above 100 kV, which would not limit this authority to truly high-capacity, interstate lines. The threshold should be raised to 345 kV or higher to align the use of backstop siting authority with the bill’s intended purpose: simplifying approval for interstate, high-voltage transmission lines.

Next, while natural gas pipelines benefit from existing federal siting authority, Section 401 of the Clean Water Act (CWA) has increasingly been used by states to block critical infrastructure projects. Procedural in nature, Section 401 grants states the authority to ensure federally permitted projects comply with state water quality standards, but the process is often leveraged to halt projects for reasons unrelated to water quality.

The Promoting Efficient Review for Modern Infrastructure Today (PERMIT) Act, led by House Republicans, includes a couple targeted provisions that could be incorporated into a bipartisan permitting package. These additions complement the bipartisan support for CWA Section 401 reforms, such as the Problem Solvers Caucus’s endorsed permitting framework. Specifically, limiting the scope of Section 401 to direct impacts on water quality would reduce the likelihood of states using this statute to block projects they oppose for non-water-related reasons. Another potential reform could be allowing FERC to grant certification when multiple states within a project’s footprint support it, preventing a single state from unilaterally blocking progress.

While the Energy Permitting Reform Act, the bipartisan deal that failed in the 118th Congress, wasn’t as comprehensive as what is hoped for in the 119th, several components of the bill merit consideration. These include expanded use of categorical exclusions for low‑disturbance projects, expedited permitting for geothermal energy, and the removal of federal permitting requirements for the extraction of resources that are less than 50% federally owned. A permitting deal should also include a Rosemont Fix, which codifies long-standing precedent that ancillary mining activities are considered part of mining operations and are allowed on federally permitted land.

Finally, any package should include policies that digitize the federal permitting process, as proposed in the ePermit Act; remove mandatory hearings at the Nuclear Regulatory Commission for uncontested license applications, as proposed in the Efficient Nuclear Licensing Hearings Act; and require FERC to report annually on hydropower relicensing, as proposed in the Hydropower Licensing Transparency Act. To complement permitting reform efforts, grid reliability-focused provisions such as the Electric Supply Chain Act, which requires DOE to assess and report on vulnerabilities and trends in generation and transmission supply chains, should also be considered.

We can no longer wait to pass comprehensive permitting reform. Congress must work together to reach a deal before the end of this session. The longer we wait, the further we delay achieving our energy and environmental goals.