As Labor Day looms, Congress is preparing to return to Washington for a short work session before heading onto the campaign trail for the pivotal 2022 midterm elections. On its to-do list for September are few issues that could directly impact CRM.
Permitting Reform. As part of the deal to secure Sen. Joe Manchin’s (D-WV) vote for the Inflation Reduction Act climate and health bill, President Biden and Senate Democrats agreed to an up-or-down vote on permitting reform legislation by the end of September.
It is not clear what such a package will include, but in August, Manchin released his “wish list” of items, including:
- Designating and prioritizing projects of strategic national importance. Under the plan, the President would designate “at least 25 high-priority energy infrastructure projects and prioritize permitting for these projects.”
- Setting maximum timelines for permitting reviews, including two years for NEPA reviews for major projects and one year for lower-impact projects. The plan also would “require a single inter-agency environmental review document and concurrent agency review processes.”
- Streamlining the Clean Water Act Section 401 process by requiring one of four final actions within one year of certification requests: grant, grant with conditions, deny, or waive certification. The plan also would prohibit state or Tribal agencies from “requesting project applicants to withdraw applications to stop/pause/restart the certification clock.”
- Addressing “excessive litigation delays” by setting a statute of limitations for court challenges, and requiring that if a federal court remands or vacates a permit for energy infrastructure, the court must set and enforce a reasonable schedule and deadline of 180 days or less for the agency to act on remand.
- Enhancing federal government permitting authority for interstate electric transmission facilities that have been determined by DOE to be in the national interest.
The plan also would allow call for the completion of West Virginia’s Mountain Valley Pipeline.
The plan’s prospects are far from certain. A number of Democrats, especially in the House, have raised objections to the proposal. Rep. Raul Grijalva (D-AZ), the Chairman of the House Natural Resources Committee, wrote in an op-ed that the plan “would restrict public access to the courts to seek remedies against illegal project development; place arbitrary limits on the amount of time the public has to comment on polluting projects; curtail public input, environmental review, and government accountability; require a certain number of harmful fossil fuel projects to be designated as ‘projects of strategic national importance’ to receive priority federal support, assistance, and expedited environmental review; undermine the Clean Water Act; and more.”
Even some Republicans are balking at the plan because they do not believe it goes far enough in streamlining permitting rules they say get in the way of progress.
Congressional leaders have been considering attaching a permitting reform bill to the must-pass annual spending bill (see below), which could force recalcitrant Democrats into a choice between swallowing a permitting reform plan they dislike or shutting down the government only weeks before the election. But without a clear path for the proposal to get enough votes in either chamber, it could fall by the wayside. Either way, ACRA continues to track the proposal as it develops.
Funding Bills. October 1 is the start of the 2023 federal fiscal year, and as we’ve seen in most recent years, Congress is nowhere near finishing work on the appropriations bills that keep the government running. That means it is almost certain that Congress will pass a short-term continuing resolution in September to keep agencies open until after the election or even early 2023.
Once Congress does get around to approving the fiscal year 2023 bills, it will need to resolve differences between the House and Senate versions of the Interior Department spending bill, which provides funding for the Historic Preservation Fund and other preservation activities.
The House bill, passed by the chamber in July, would provide $171 million from the Fund to support state and Tribal historic preservation offices and other preservation programs, $2 million below the current year’s level. The Senate Appropriations Committee has proposed $191 million for the Fund, but has yet to approve the bill, much less get it before the full Senate for a vote.
ACRA and its partners in the preservation community are advocating that Congress provide an amount closer to the Senate’s number, recognizing that the passage of the Inflation Reduction Act and last year’s infrastructure law, coupled with the steady increase in THPOs, means that state and Tribal preservation offices need more support to facilitate Sec. 106 reviews and other activities.
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