Summary
Over the summer, U.S. Senators Joe Manchin (I-WV) and John Barrasso (R-WY) released the Energy Permitting Reform Act of 2024 (EPRA). This proposal guts bedrock environmental legislation that provides safeguards to communities from dangerous health risks, life-threatening pollution, and contamination created by dirty industry.
Under the guise of needing to move along clean energy projects, this permitting reform legislation is a raw deal for us all. The House’s accompanying proposal demonstrates clear connections to Project 2025‘s quest to weaken the federal government and discredit environmental justice advocates. Lawmakers need to safeguard communities’ health and well-being instead of cowering to corporate interests.
It is possible to have a rapid and justice-centered transition to the clean and renewable energy system we need. The Climate and Environmental Justice Movements have laid out a clear plan to accomplish this, with robust community engagement, including: prioritizing energy conservation, distributed and responsibly-cited energy production, addressing transmission bottlenecks and utility obstruction.
Context
The National Environmental Policy Act (NEPA) was signed into law in January 1970. Around this time the United States also saw the Clean Air Act (CAA) and Clean Water Act (CWA) passed into law or become actionable at the federal level. These laws were spurred by some of the worst pollution ever seen in this country. Rivers caught on fire, toxic smog hung over many cities, and countless people died from exposure to toxic industry.
While emissions leading to climate change have become a primary focus of our time, the ability of corporations to spew pollution into our communities has drastically decreased over the last few decades because of stricter government regulation.
The Polluters’ Priority Plan: Another Dirty Deal in the Senate
S.4753 – the Energy Permitting Reform Act of 2024 focuses on reforming the leasing, permitting and judicial review process for energy and mining projects. This bill is yet another iteration of Senator Manchin’s Dirty Deal legislation that was defeated 3 times before. It is such a glaring handout to dirty industry that it’s being referred to by some as the Polluters’ Priority Plan.
Environmental Justice leaders agree. According to Elizabeth Yeampierre, Executive Director at UPROSE and CJA Board Co-Chair, “This dirty deal ‘accelerates leasing and permitting decisions for all types of energy projects on federal lands’, will fast-track LNG projects, and clear the way for oil, gas, coal, mining, and liquified natural gas companies to pollute our water and lands — all in all, exacerbating the public health issues faced by our communities amidst an increasingly accelerated climate crisis. It also strips away communities’ rights and the foundational protections afforded them under the National Environmental Policy Act (NEPA) and other bedrock protections like the Clean Water Act that ensure a pathway for community input and recourse against toxic and polluting industries.”
The EPRA dramatically alters the leasing practices for onshore oil, gas, and renewable energy. These reforms include altering specific deadlines for applications and permits. In some cases the timeline from proposal to approval would be just 40 days. These changes make it harder for communities to weigh in on projects that directly impact them, while benefiting extractive corporations choosing communities to sacrifice in the pursuit of profits.
Judicial review of project authorization is currently 6 years. The EPRA reduces that to merely 150 days. This alone virtually eliminates the ability for communities to develop comprehensive impact assessments and challenge harmful projects in court.
Expediting review processes for energy production and transmission does not allow in-depth analysis to happen, such as a comprehensive review of cumulative impacts for surrounding communities. Instead, this will guarantee more harm and life-threatening risks for the most vulnerable communities who live, work, play, and pray by these projects.
A Win for Fossil Fuels, a Blight for Renewables
Environmental Studies Professor Dustin Mulvaney points out in a recent article, “It [EPRA] contains provisions for everything from undoing the pause on building new liquified natural gas facilities, to letting mining companies dump waste on public lands, to promises to expedite the siting process for electricity transmission lines and fossil fuel infrastructure. In typical bipartisan fashion for energy legislation, western public lands are for sale to energy and mining industries. Oil and gas producers will get access to more onshore and offshore energy, force the approval of new liquified natural gas facilities along the Gulf of Mexico to export, and reverse an important court decision and allow mining companies to treat public lands like a hazardous waste dump.”
This legislation has been peddled as a tool to reduce net greenhouse gas emissions – already a flawed concept that doesn’t address emissions at the source nor in the time needed – however according to Professor Mulvaney, the modeling used to justify this legislation is inaccurate and problematic because, “they erroneously assume the law is the reason that all future transmission is built. This ignores years of incremental policy incentives to facilitate transmission build out such as the recently implemented Federal Energy Regulatory Commission Order 1920, and grossly overestimates the greenhouse gas benefits from permitting reform.”
This bill ensures that our transition to clean energy will only happen if the dirty fossil fuel industry is allowed to expand projects that accelerate climate change. This in turn, will increase the life-threatening impacts of extreme weather and mega-storms. Meanwhile the renewable energy industry will become the next “big” industry that disregards the will of communities’ and their democratic rights in their pursuit of profit.
More sound solutions solve for and understand, as the Biden Administration put it, the “perilous impacts of methane on our planet” and the need to “guard against risks to the health of our communities, especially those that shoulder the burden of pollution from new export facilities.”
Yet Another Plan to Weaken NEPA
This bill specifically attempts to weaken NEPA by expanding the use of categorical exclusions for “low disturbance activities.” Since categorical exclusions allow agencies to bypass an environmental assessment or environmental impact statement, expanding the activities in this classification increases the potential for projects with negative environmental impacts to be approved.
It is counterintuitive and harmful to allow projects to bypass additional scrutiny and accountability from communities where the projects are proposed. Tom Goldtooth, executive director of the Indigenous Environmental Network shared, “Our Indigenous communities and tribal governments fighting to protect our environment and the health of our people have consistently fought against weakening the National Environmental Policy Act (NEPA) and fast-tracking permitting processes. The United States government has a fiduciary responsibility to protect Indigenous nations and respect our sovereignty and self-determination to prevent harm from the extractive industries coming into our lands and territories, including public lands that are culturally and historically significant. Continued violations to Indigenous Treaties must stop now! We reject the Energy Permitting Reform Act of 2024. EPRA does not recognize our inherent relationship jurisprudence and jurisdictional authority to protect our lands, waters, air, and territories.”
Alarming Accompanying Proposals in the House
In September 2024, the House Natural Resources Committee shared its version of permitting and NEPA “reform” at a hearing to discuss 3 bills on the issues. One of these was the draft of a bill proposed by Representative Westerman (R-AK) to “amend” NEPA. Westerman’s proposal would significantly alter the purpose of NEPA to become a procedural statute that considers environmental review but does not mandate specific outcomes or results, taking out all the teeth to this act.
KD Chavez, interim executive director of the Climate Justice Alliance explains, “The National Environmental Policy Act is the People’s Environmental Law. For half a century, it has given frontline communities, like the ones we serve, the voice and the agency to determine the types of federal projects built in our neighborhoods. Whether it’s a highway expansion, the building of a toxic incinerator, or a new polluting power plant, NEPA is one of the only legislative tools that our communities have to protect ourselves and fight for our lives and livelihoods.”
This proposal would impose nonsensical and strict limitations on judicial review for cases, such as mandating plaintiffs to have participated in the public comment period of the project and limiting their lawsuit to the points made during that comment period only.
In comparison to 150 days to file claims in the Manchin-Barrasso bill, Westerman proposes shortening the deadline even further to 120 days. It also restricts all court actions against projects “unless there is a clear finding of substantial and proximate environmental harm.” Moreover, it minimizes the scope of environmental reviews to those within the jurisdiction of the lead federal agency in charge of the project, and limits the use of any new scientific evidence.
All this and other parts of the bill create significant roadblocks for community members who may not be well informed about a project’s impact, nor have the right tools, resources (financial or otherwise), and evidence ready in order to hit the ground running and advocate within the shortened time frame that comments can be heard and litigation carried out.
It’s important to note that Republican Representative Westerman has been successful in his endeavors to weaken NEPA already this year, as he is one of the architects of the recently passed “Fix Our Forests Act” in the House. This legislation is a blow to NEPA environmental review in forest management practices.
What Positive Permitting Reform Could Look Like
Studies have shown that earlier and more robust community involvement in the development of large-scale projects increases acceptance among local populations. As renewable energy projects face growing opposition at the community level, despite polls showing they have broad support, it makes sense that elected officials would want to find ways to ensure projects move forward in good relations with the community they’re becoming a part of. Fortunately, permitting reform can happen without undermining bedrock environmental laws like NEPA. Environmental, climate justice, and community organizations already have a clear vision for positive and progressive permitting reform.
At a time of increasing weather disruption and climate emergencies, localized energy sources can help communities remain resilient and adapt to unprecedented challenges.
Localized renewable energy production that is distributed across built spaces is an important tool to meet the energy demands of this moment. Historically it has been assumed that only utility scale production and large scale transmission can meet these needs, but that is not the case. Energy efficiency and conservation technologies such as heat pumps and weatherization, and mandatory emission reductions can help reduce energy demands. Distributed energy sources like rooftop and community solar and storage, and microgrids can avoid the impacts and inefficiencies of large scale transmission energy projects. When necessary, large scale renewable energy and transmission should go through robust environmental review and community engagement, taking advantage of building on degraded lands and surfaces first.
A responsible and comprehensive approach to mining should be a priority as we do not want to perpetuate or create environmental injustices and harms on communities through massive extraction of minerals. Responsible extraction, a circular economy, and alternatives/limitations for the mineral demands must be priorities in the process.
Final Thoughts
The current proposals in both chambers of Congress open up the floodgates to loopholes that fast track oil and gas projects, and undermine our climate and energy goals. These loopholes create space for dangerous distractions such as carbon capture and storage, hydrogen, and other technologies that are unproven to reduce emissions at the rate and speed needed to meet the moment and actually increase greenhouse gas emissions. These risky projects will only extend the life of the fossil fuel industry and create further harm and pollution in frontline communities.
Instead, we support positive permitting reform that would further democratize early and meaningful community engagement and boost environmental review processes that studies have shown actually “avoid extended delays or project cancellations” and can reduce backlog, while also increasing thoroughness. In a policy brief by the Roosevelt Institute, they shared that “Most NEPA decisions are made within a reasonable time for the complexity of the project, and the analytical rigor applied to a project is tailored to the intensity of a project’s impacts.” Improving the interconnection queue backlog while also addressing understaffing and underfunding of permitting agencies should also be addressed if we really want to move sensible projects forward. Incentivizing community-led projects and engagement with them at the beginning of the process should be prioritized, not undermined.
Here’s what environmental justice leaders are saying:
“With adequate community consultation and design involvement from the beginning, we know that green energy projects can move forward and serve as a value-add to Black and Brown communities most impacted by pollution and climate change. Sidelining communities in the process by weakening the National Environmental Policy Act will only further slow down the permitting process and codify future harm for those already experiencing the impacts of environmental racism on a daily basis. Democratic leadership: You must do everything in your power to block this deal! The time to act is now.”
“Rather than another handout to dirty industry, we should be advancing forward thinking legislation that jumpstarts a Just Transition through locally led, proven climate solutions such as community owned wind and solar. We need legislation like the Environmental Justice for All Act that ensures safeguards and strong protections for communities, and takes into account the cumulative impacts our neighborhoods have faced for decades.”
“Sen. Manchin continues to sacrifice our communities for fossil fuels, while we are fighting for our lives. At a moment when we have no other choice but to build and create real community climate solutions that center environmental justice, we are forced to spend time fighting against bad policies that we’ve already organized against and won multiple times. Listen to the people, how many times do we have to say no?!? Let this zombie bill die once and for all.“
“Again and again, Sen. Manchin has steadfastly demonstrated his commitment to corporate giants rather than community constituents. Our position is very clear—-and grounded in the stakes of this moment in the climate crisis and in the Just Transition we desperately need to address it. We call on our policymakers to reflect this urgency, and at the least, not aim to derail climate justice work for corporate interests and financial profit.”
“Permitting reform has become a buzzword that’s supposedly about building the renewable energy we need rapidly and efficiently. But if that’s what its proponents truly want, they would address the real roadblocks to deployment of renewable energy, such as the wait times for renewable generation to connect to the grid, instead of using yet another excuse to attack and weaken bedrock environmental laws that provide a measure of protection against polluting projects for already overburdened frontline communities.”
