Another Try at Permitting Reform?

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Last week, Sen. Manchin (D-WV) was unsuccessful in his attempt to pass permitting reform legislation as part of a continuing resolution to fund the federal government. He couldn’t get the requisite 60 votes in the Senate. Nonetheless, Washington gossip immediately turned to a possible second try for Sen. Manchin in the lame duck session this December.

Could a permitting bill pass in 2022? It’s unlikely. Here’s why:

  1. Sen. Manchin just lost his best opportunity. He had the support of the President, the Senate Majority Leader, and the Speaker. His bill was attached to must-pass legislation, providing cover for members to vote for the bill in the name of avoiding a federal government shutdown. It’s hard to imagine a scenario that could be more favorable to his cause. But he still couldn’t get the votes.
  2. Permitting bill supporters would like to see the legislation attached to another must-pass piece of legislation, like the National Defense Authorization Act (NDAA). However, there’s increasing frustration in Congress with turning the NDAA into a Christmas tree, a bill that contains lots of unrelated amendments and provides a little something for everyone. For example, Sen. Joni Ernst (R-IA), a member of the Armed Services Committee, has already been publicly saying that she doesn’t want non-germane amendments added to the bill.
  3. The elections in November could lessen the likelihood of immediate action. If Republicans win the majority in either chamber of Congress, they may opt to wait to consider permitting reform legislation. Why compromise with Democrats in a lame duck session rather than bring up their own version of the bill in a Republican-controlled chamber in 2023?
  4. It’s very difficult to pass legislation in a closely divided Congress. Any changes Sen. Manchin makes to the bill will inevitably cause him to lose support from one side or another. If he drops the requirement to approve the Mountain Valley Pipeline, he may win the support of some Democrats, like Virginia Sen. Tim Kaine (D-VA), who opposed the provision. But it could cost of him the support of Republicans, like Sen. Shelley Moore Capito (R-WV), who is a big proponent of the pipeline. It’s very hard to see how he can get 60 votes.
  5. The environmental justice movement strongly opposed the bill. Were the bill to be revived in the lame duck session, it would reenergize the movement. On top of that, 77 House Democrats and 5 Senate Democrats signed letters opposing the plan to attach the permitting bill to the continuing resolution. This political dynamic complicates prospects for the bill in the lame duck.

Many members of Congress want to change the federal permitting process. After the continuing resolution passed, some senators reiterated their interest in moving a bill to improve federal permitting before 2022 ends. Election year politics, ongoing disputes over the Mountain Valley Pipeline, and the opposition of environmental justice movement will make it very difficult to secure the 60 votes needed in the Senate for the bill to be enacted. Despite the chatter about taking another swing at the bill, it is unlikely we’ll see Congress pass permitting reform this year.