The U.S. Senate left Washington last week, as Senators jetted home to join their House counterparts on the campaign trail.
But before they left, four Senators left behind a major piece of legislation they hope Congress will pass after the election: a 417-page permitting reform bill that would make the most far-reaching changes in Section 106 since its enactment 60 years ago.
ACRA continues to analyze the bill, but this much is clear: the legislation would leave many historic properties unprotected; limit the ability of states, Tribes, communities and the public to have a voice in projects in their own backyard; place strict and likely unworkable timelines on the process that will make it exceedingly hard to engage in meaningful consultation; and make it more difficult to sue to stop projects that threaten our heritage.
The bill covers far more than preservation. It seeks to amend a wide array of laws, including the National Environmental Policy Act (NEPA) and other environmental statutes, to accelerate the permitting process. It would encourage the deployment of clean energy and electricity transmission projects. It would stop federal agencies or the White House from rescinding already-issued permits. And it would take initial steps to ensure that data centers pay for the additional energy load they consume.
As it has done with the ACHP’s radical overhaul of the regulations that implement Section 106, ACRA is quickly mobilizing a strategy to counter the bill’s most harmful provisions in advance of possible congressional consideration after the election. More on that to come soon.
The Bill’s Prospects
The bill’s backers in the Senate hope they can push the bill through Congress in the lame duck session of Congress that will start a week after the election. What would that look like?
While bills normally undergo committee hearings and debate before reaching the floor, the permitting reform legislation will almost certainly skip that step. Once a lame duck session starts, Senators will have the chance to offer amendments to change the bill, on which the full Senate would vote. The first major vote on the bill would be for cloture, which ends debate and requires 60 votes to pass. If cloture is achieved, the bill would move towards a final vote. Final passage requires a simple majority vote.
The bill would then go to the House, where Republican leaders would first need to pass a “rule” governing debate over the bill; the rule would require a simple majority to be approved. The rule would determine how many – and even whether – House members can offer amendments. Assuming the rule passes, the bill would then need a simple majority. If the House passes the bill unchanged from the Senate-passed version, it goes right to the President, who has said he would sign it.
That’s the process – but there are some wrinkles that could alter its trajectory:
- First is the cloture vote itself, which requires 60 Senators. There are currently 53 Republicans and 47 Democrats in the Senate (remember: in a lame duck session, it’s the old lawmakers who get to vote, not the newly elected members). Assuming all Republican Senators vote to end debate, the bill would need at least seven Democrats to move forward. Seeing as the bill is currently cosponsored by two Democrats, that means only five more would be needed. Not a massive lift, but not a guarantee.
- Next is the House. With a very narrow majority, Republicans have had difficulty passing rules for debate this year. If a rule is defeated, a bill cannot even come up for debate except under special procedures that require a supermajority to pass.
- If the House makes changes to the bill before passing it, it would have to go back to the Senate, which could balk at those changes, and the chambers would need to negotiate, dragging out the process. And with a short lame-duck session, time would not be the bill’s friend.
- Congress has a hefty to-do list in the lame duck: avoiding a government shutdown, plus advancing a farm bill, a transportation bill, defense spending, and other must-pass legislation. Again, if the debate on these runs long, time may run out for permitting reform.
- Then there’s the matter of the election. If Democrats win control of the House (which is increasingly likely) and the Senate (a longer shot but possible), Democrats may want to delay action on permitting reform until they formally take the reins of power in January.
- Last but not least, there is the President himself. The Democratic negotiators held off on endorsing the bill until the White House assured them it would no longer block renewable energy projects. But one tweet (or Truth) from the President bashing wind farms or solar power could give Democrats cold feet. Or the President could demand additional legislation be attached to the permitting bill, like his SAVE Act voting reform bill, which would likely kill it.
The permitting reform bill, therefore, has a lot of hurdles to overcome before it can become law. But the bipartisan desire to speed up infrastructure projects will give it momentum. Ultimately, the more effective way to ensure that bad policy doesn’t become law is for those who understand the issue best to make their case to lawmakers.
It’s essential, therefore, that the CRM industry let Congress know that the bill, as drafted, won’t speed up projects – and will endanger some of our most sacred sites.
We have five weeks before debate could start on the bill. Stay tuned to ACRASphere for updates and marching orders.