A Permitting Test for Democrats

Let’s see how many Senators vote to repeal a Biden rule that blocks public works and energy projects

WSJ editorial.

"Permitting headaches for public works are a bipartisan complaint. So we wonder: Will Democratic Senators join their Republican colleagues in voting to reverse a Biden Administration rule that adds costly new roadblocks?

Alaska Sen. Dan Sullivan plans to call for a vote as early as this week on a resolution to overturn a Council on Environmental Quality change to permitting rules under the National Environmental Policy Act (NEPA). Under the Congressional Review Act, a simple majority of both chambers can pass a resolution of disapproval to kill a rule.

Any Senator can also make a non-debatable motion for a floor vote. While a President can veto a resolution, it has the salutary effect of compelling Members of Congress to endorse or repudiate a regulation. Many Democratic Senators have been silent as the Administration tries to strangle public works and private energy projects via regulation. Now they will have to take a position.

Finalized in April, the Biden rule rewrote parts of a Trump Administration rule that sought to ease regulatory barriers under NEPA. The new rule gives federal regulators enormous discretion over the scope of environmental reviews under NEPA. The Biden rule summary says it “clarifies that agencies have discretion to consider a variety of factors” and aren’t limited by their statutory authorities. In short, it empowers regulators to do as they please. 

One exception: The rule limits their discretion to fast-track reviews. For instance, the rule requires federal agencies to consider all of the “cumulative” and “indirect” project effects, including those created by climate change. Regulators have to consider how a project in conjunction with other unrelated activities affects land, air, water and endangered species.

Some liberal federal judges have read such a requirement into the law and used this as a pretext to block projects. Earlier this year, a Fourth Circuit Court of Appeals panel tossed a permit for the Mountain Valley gas pipeline because the Fish and Wildlife Service did not consider the “cumulative” impact of non-pipeline construction on two endangered species.

The judges said the agency should have evaluated how the pipeline—in conjunction with road improvement, urbanization, water withdrawals, agriculture and climate change—could affect the logperch and candy darter fish years into the future. Under the Biden rule, federal agencies would have to do this sort of evaluation for every large project they review.

That could include chip-making factories receiving federal subsidies because they have large land impact and require loads of water. A report last fall by Georgetown’s Center for Security and Emerging Technology noted that permitting obstacles could impede construction of new semiconductor factories.

The Biden White House didn’t have to rewrite the Trump rule, and it did so precisely so its regulators and courts find it easier to block projects. There is no other justification for it. The Manchin-Schumer bill gives federal agencies an additional $375 million to “facilitate timely and efficient environmental reviews.” But the real reason regulators need more money is because the Biden rule requires unnecessarily extensive environmental analyses.

All 50 Senate Republicans are co-sponsors of Mr. Sullivan’s important resolution. This vote will be telling for West Virginia Sen. Joe Manchin, since his support would cause the resolution to pass with 51 votes.

But the vote will also be a signal of how much Democratic support there is for permitting reforms that Mr. Manchin says Democratic leaders have pledged to vote on by the end of September. That would require 60 votes to pass. We’ll see how many Democrats really want new public works and more energy by how many of them vote for Mr. Sullivan’s resolution."