What a difference two weeks makes. In early November, Republicans were anticipating a “red wave” that would sweep them to power in both chambers of Congress, enabling them to undo President Biden’s agenda and chart a new course for the country.
Instead, Democrats kept control of the Senate, and could even see their majority increase if incumbent Senator Raphael Warnock (D) defeats challenger Herschel Walker (R) in the Georgia runoff Dec. 6. And while Republicans have won control of the House for the first time since 2018, their majority will be far smaller than they expected.
So what does divided government mean for the CRM industry? It’s still a bit early to say for sure how things play out, but here are a few possibilities:
Increased Oil, Gas and Mineral Exploration. Now that they have secured a majority, House GOP leaders are looking to unveil a package of energy and environment bills as early as January. Their goals: increase domestic production of fossil fuels and critical mineral mining.
Legislation may look similar to two bills Republicans introduced this year. The American Energy Independence From Russia Act (H.R. 6858) would require the President to submit to Congress an energy security plan that includes strategies to encourage increased domestic production of crude oil, petroleum products, and natural gas to offset Russian imports. The bill also would:
- approve the TransCanada Keystone Pipeline for the import of oil from Canada to the United States
- require federal agencies to obtain congressional approval before prohibiting or substantially delaying certain new energy mineral leases or permits on federal lands, or withdrawing certain federal lands from mineral and geothermal leasing activities
- requite the Department of the Interior to resume issuing oil and gas leases on federal lands and offshore submerged lands in the Outer Continental Shelf.
The second bill that may see new life in a GOP-controlled Congress is the Securing America’s Mineral Supply Chains Act (H.R. 8981). This bill would:
- Designate a lead federal agency to coordinate the mine permitting process to maximize efficiency and minimize delays for mining projects on federal land.
- Set time limits for key steps in the federal permitting process, including for NEPA reviews.
- Prohibit mineral withdrawals on federal lands without a recent mineral assessment or a certification that a proposed withdrawal would not impede a secure U.S. supply chain
- Prohibit the reversal of existing leases, permits or claims for critical mineral or aggregate development without an act of Congress.
Although such bills could pass a Republican-controlled House, they would likely be dead on arrival in a Senate controlled by Democrats. But, with the Senate Energy and Natural Resources Committee chaired by West Virginia Sen. Joe Manchin – not to mention the Biden administration’s desire to reduce domestic dependence on oil and critical minerals from countries like Russia and China – some form of increased fossil fuel exploration and extraction could find a way forward.
Permitting Reform. Such moves could mean more work for CRM firms – if Congress does not try to undermine the Sec. 106 process and NEPA along the way. Changes to the permitting process seem almost a certainty in the new Congress (unless Democrats manage to pass reforms offered by Sen. Manchin in the lame-duck session before the end of the year, which is by no means not a sure thing.)
Manchin’s proposal – which he tried and failed to attach to a stop-gap spending bill last September – would set a 2-year target for NEPA environmental impact statements and a 1-year target for environmental assessments for major energy and natural resource projects, limit court challenges to permitting decisions, and require federal agencies to issue all approval and permits necessary for the West Virginia Mountain Valley Pipeline. The bill received a cold response from progressive Democrats, but also from some Republicans, who felt it did not go far enough.
House Republicans may try to codify into law NEPA reforms that former President Trump issued in 2020 (and which President Biden has since rescinded), but these would almost certainly die in the Senate. But with the White House advocating for permitting reform as a way to increase domestic energy production and reduce gas prices, some sort of permitting reform is a good bet in 2023.
Historic Preservation Fund. The legal authority for the HPF, which plays an instrumental role in supporting preservation activities at the state, local and Tribal levels, expires on Sept. 30, 2023, meaning Congress will have to re-authorize it. Technically, even if they don’t, Congress can still provide funding for SHPOs, THPOs and other programs that rely on the Fund, but it will be harder to secure adequate funding levels without the legal authority.
This year, ACRA and its preservation allies have been working to build support for the Historic Preservation Enhancement Act, introduced by Rep. Teresa Leger Fernandez (D-NM), which not only makes the Fund permanent (thus ending the need to re-authorize it every few years) but doubles the amount authorized to be taken from oil and gas royalties from the current $150 million per year to $300 million.
Getting this bill through a divided Congress next year will be more difficult than when one party controlled both chambers, but not impossible. There is bipartisan support for preservation programs, and allies hope that Congress will be able to demonstrate its support for the Fund once again.
Funding Levels for Preservation. In recent years Congress has increased the level of funding it provides to programs supported by the HPF, including for SHPOs and THPOs – albeit not as much as they need. This funding increase was due in no small part to the leadership of Senate Appropriations Committee Chair Patrick Leahy (D-VT), a longtme advocate of preservation programs. However, Sen. Leahy did not run for re-election and will not be in the Senate next year. Although there are other champions for preservation on the appropriations committees, it is unclear whether Leahy’s absence will have a measurable impact on the amount of funding.
In addition, it is likely that the majority Republicans in the House will try to cut spending on a range of domestic programs, which could include preservation programs at the Department of the Interior and elsewhere. If both parties cannot agree on funding levels, they risk the possibility of a government shutdown. Either outcome could mean more challenges for state and Tribal preservation offices.
The Need to Advocate. Regardless of how the new Congress approaches these and other issues – and regardless of who is in charge on Capitol Hill – one thing has not changed: the importance to the CRM industry and its allies to continue making the case to lawmakers on both sides of the aisle that preservation and CRM are worth supporting.
One of the most important outcomes of the 2022 election was that it showed that democracy works, however imperfect it may be. But it only works when citizens get involved. Our ability to effect change in government – even if we don’t always get everything we want – is one thing we all can be thankful for this holiday season.