The partisan response to new draft legislation from House Natural Resources Committee Chairman Bruce Westerman (R-AR) could spell trouble for efforts to pass broad permitting reform in the lame-duck session.
The measure is meant to set the ground for a bicameral effort to pass major reform legislation after the November elections, a goal shared by retiring Sen. Joe Manchin (I-WV) and key industry leaders who say that existing processes ensnare valuable energy projects — both for fossil fuels and clean technologies — in delays and litigation.
The problem, environmental advocates argue, is that Westerman’s draft proposal ⏤ which was considered in committee this past week and is seen as complementary to Manchin’s bipartisan Senate legislation ⏤ essentially guts the National Environmental Policy Act. NEPA, as it is known, is a bedrock environmental law requiring the federal government to evaluate the environmental effects of major actions and decisions by agencies. Their opposition could endanger support from Senate Democrats for an eventual combined bill.
“NEPA’s directive is clear: the government must consider how a project will affect the environment, and the communities and the people affected by the projects have the right to have a fair chance to weigh in on its merits,” Rep. Debbie Dingell (D-MI), whose husband, the late former Rep. John Dingell, originally wrote the NEPA law, said during Wednesday’s hearing.
Liberal climate hawks sought to link the bill to Project 2025, a set of conservative policy proposals for the next administration overseen by the Heritage Foundation, which also seek to limit the scope of judicial reviews but go further than the House bill.
Wednesday’s hearing further revealed the scars of mistrust between House Republicans and the White House from the last round of negotiations for permitting reforms. Last year’s legislative deal between Democrats and Republicans to raise the debt ceiling included a set of reforms regarded as a modest but meaningful step forward. But, this year, the White House Council on Environmental Quality, chaired by Brenda Mallory, finalized a rule adding climate and equity provisions on top of the reforms — going against the intent of the law to accelerate permitting, House Republicans claimed.
“The White House has blatantly, blatantly gone back on their word that they committed,” retiring Rep. Garret Graves (R-LA), one of the main Republican negotiators, said during Wednesday’s hearing. “We don’t have a scenario where Chair Mallory can just write whatever she wants.”
Graves introduced a disapproval resolution to roll back CEQ’s rule implementing the NEPA changes.
Large, sweeping reforms to NEPA are a priority for Republican lawmakers — and could be included in a bill merging the House reform measure with the bipartisan Senate permitting reform bill advanced by Manchin and Sen. John Barrasso (R-WY). Both Westerman and Manchin have been discussing a legislative path forward after reform efforts ran into a blockade in 2022.
“What’s missing from the Manchin and Barrasso bill are the NEPA reforms that are a priority for House [and Senate] Republicans,” said Heather Reams, president of Citizens for Responsible Energy Solutions, a right-of-center group that advocates on energy and environmental security. “But I think the concern right now is, if the Senate bill passes as is without any NEPA reforms, there would not be an impetus to include NEPA reforms moving forward — the ship will have sailed.”
Westerman’s committee is able to focus on NEPA reforms because it has full jurisdiction over the law, unlike the Senate Energy and Natural Resources Committee, which is chaired by Manchin and approved his and Barrasso’s reform bill in July.
Manchin said on Monday that there’s “enough people on both sides” that support his proposal, and noted “we had plenty of time” to talk to any Democratic holdouts.
Getting a bipartisan co-sponsor to the controversial House NEPA reform draft could prove tricky. Westerman and centrist Democratic Rep. Scott Peters (D-CA) have been in negotiations for months on a broader permitting reform vehicle in the House. But Peters isn’t ready to sign on, he told the Washington Examiner. He said he has an issue with provisions that would limit the scope of NEPA to the jurisdiction of a certain agency, arguing that it “provides more things to fight over in litigation.”
Peters said that he wants to have provisions requiring decisions to be based on one singular environmental impact statement, rather than having multiple EISs that could conflict on a project. He also said that he wanted to speed up the litigation process, noting that when a case on a project heads to court, it usually takes several years to resolve.
Other Democrats, such as Rep. Susie Lee (NV) and Mike Levin (CA), expressed interest in working in a bipartisan manner on permitting reform – but also noted their skepticism of the House draft.
Differences between the bills
Westerman’s draft bill would limit the scope of NEPA in a number of ways, while the Senate proposal addresses a specific set of priorities for fossil fuels, renewable energy sources, and geothermal energy.
The Arkansas Republican’s measure would limit the focus of environmental reviews to impacts that are within the jurisdiction and control of a federal agency — aiming to prevent “extraneous considerations” from delaying project approvals and adding to litigation.
Notably, the bill changes the definition of a “major federal action” that triggers the NEPA process — ensuring that the act of granting federal funding does not start a review. That provision could speed permitting for projects funded by the major legislative initiatives of the past few years, such as the 2022 Inflation Reduction Act, the bipartisan infrastructure law, and the CHIPS and Science Act. Normally, many of the projects those laws are meant to encourage wouldn’t have to undergo environmental scrutiny if they were not federally funded, according to Xan Fishman, the senior director of the energy program at the Bipartisan Policy Center.
Another major theme of the bill is enacting judicial reforms to prevent projects from getting delayed through lawsuits. A difference with the Manchin-Barrasso legislation is that the Westerman bill would limit courts’ ability to vacate or issue an injunction on a project unless there’s a “clear finding of substantial and proximate environmental harm.”
“Terms like that in the statute are hard to say exactly what they’re going to mean,” Fishman noted. “How much is substantial, how close is proximate? I don’t think there’s actually a way to legislate exactly where those lines are.”
Fishman said that historically, it’s been up to the courts to define the boundaries of such language.
Some of the House’s judicial reforms are similar to those in the Senate proposal, with both establishing expedited deadlines for courts to resolve NEPA-related cases and fix deficiencies in EISs within 180 days.
However, the House proposal goes further than the Senate bill, requiring plaintiffs to file claims within 120 days of a final agency action — a shorter time period than the 150-deadline established in the Manchin-Barrasso proposal.
Some experts have noted that speeding up the consideration of projects will be difficult to achieve if the bill doesn’t authorize additional funds to expand staff capacity at federal agencies.
“If you have an agency that is chronically understaffed with insufficient staff resources – and that’s the primary source of delay in issuing permits — telling them to do more faster is not going to address the core cause of delay, which is really agency capacity,” said Jamie Pleune, an associate professor of law and research at the University of Utah. Pleune has testified before a House Natural Resources subcommittee on research conducted on NEPA decisions.
The bill also clarifies that agencies are not required to conduct new scientific or technical research unless it is considered “essential” to make a reasoned choice among project alternatives. The intention is to prevent agencies from using research requirements to stall decision-making while protecting them from litigation.
The measure also clarifies the law is a procedural statute meant to ensure agencies consider the effects of their actions without mandating specific outcomes.
Limited support from green groups
Still, support from environmental advocacy groups is expected to be limited, as many say that both permitting proposals are giveaways to fossil fuel interests that limit community feedback on projects.
“We think that communities need time to really assess the environmental impacts and also potential alternatives that could be less destructive,” said Joseph Gordon, a climate and energy campaign director for Oceana, a group dedicated to ocean conservation. “Taking judicial review from six years to 120 days is a really extreme change that could cause significant harm over time.”
Seventy environmental advocacy groups, including Oceana, asked members of Congress earlier this month to oppose the legislation. The groups cite a commitment made by the U.S. at last year’s global climate summit to transition away from fossil fuels — a pledge that will become relevant again during November’s United Nations climate conference, known as COP29, in Azerbaijan.
The opposition could peel away Democratic support that could be needed to pass both measures. Some Democrats had voiced opposition to the Manchin-Barrasso measure in committee — but it did receive largely bipartisan support.
“The projects that a lot of Dems care about need these reforms as much as projects that I care about,” Westerman told the Washington Examiner. “It would be good for the whole country to get NEPA functional and to have it quit being such a burden on getting projects done.”
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Still, Pleune noted that scaling back NEPA, or even doing away with the law, won’t necessarily guarantee a sped-up process — and could actually have the opposite effect.
“These efforts to reduce or eliminate the role of NEPA could have the adverse effect of actually making the permitting process more complex, more disjointed, more confusing,” Pleune said. “The transparency that’s supported by the NEPA process is something that’s really valuable in reducing risk and exposing potential flaws of a plan.”