Can Weak Manchin Permitting Bill Be Strengthened?

After authorizing $370 billion in new funding for new, cleaner energy sources, Congress is turning to permitting reform: All the money in the world will not help if projects don’t have permission to build. Wednesday evening, Senator Manchin released proposed text for his permitting bill, which he apparently negotiated in return for his vote to authorize the energy funding. Unfortunately, the bill is not well-designed to speed up construction of new energy sources. But with a few strategic additions it could go a long way toward speeding up permitting to secure a cleaner, more reliable, and affordable energy future for the United States.

The biggest roadblock to energy sources is not financial; it is receiving permission to build. And many of the projects that we most need for a clean energy transition face particular permitting difficulties because they need permits from multiple states or local communities and the federal government. Our traditional energy commodities, oil and coal, are less dependent on building long-distance infrastructure because they can rely on existing railroads and pipelines, and they are easier to ship by multiple pathways using rail, road, and water transport. By contrast, cleaner energy products such as renewable electricity, natural gas, and hydrogen can only be shipped by new long-distance infrastructure.

Think of a long-distance power-line designed to bring renewable energy to market, a pipeline shipping natural gas to communities hoping to move away from coal, or a hydrogen pipeline designed to help replace fossil fuels. These linear infrastructure projects often need approvals from each state they cross and may also need approval from the federal government as well whenever they cross federal lands, borders, or streams.

There are two huge legal permitting challenges for these new cleaner energy projects.

So if we want to clean up our energy system and address the global energy crisis, which is causing energy shortages and price spikes around the globe, we need to speed up permitting. If the $370 billion authorized by Congress just goes to the few projects that would already have passed the permitting gauntlet, it will be money wasted. So we’ve seen a growing chorus of voices demanding reform to the permitting process to ensure this money isn’t squandered and that we can build a cleaner energy future.

The federal and state permitting challenges are linked because perhaps the most common proposal to speed permitting is to replace state and local siting processes with federal processes. For example, in 2005, the U.S. Congress gave the federal Department of Energy the power to designate areas that particularly needed more electricity transmission and gave the Federal Energy Regulatory Commission power to, in some circumstances, permit power-lines that hadn’t been approved by the states in those areas. Senator Manchin’s bill leans heavily on this method of speeding permitting: it gives federal government more power over permitting new power-lines and hydrogen pipelines.

The problem is that this is not an improvement at all when federally-approved projects are facing Kafkaesque challenges when they seek approval to actually build their projects. The energy sector where federal permitting is most common is in interstate natural gas permitting and these projects are routinely stopped by local objections even when they have federal approval. In fact, the two highest-profile recent gas pipeline projects—the Atlantic Coast Pipeline and the PennEast Pipeline—eventually had to give up on building their projects after years of expense and struggle, even though the federal government repeatedly backed both pipelines and both pipelines won blockbuster decisions in the U.S. Supreme Court.

If the Manchin bill passes as is, the gas pipeline industry can welcome the power-line and hydrogen industries to national regulation with this unwelcome news: “Even if the federal government backs you on every permit, and even if the Supreme Court backs you in every decision, no matter how long you wait, or how much you spend, states and lower courts will make life so difficult that your proposed project will never be built.”

The dysfunctions of federal permitting under court review are well known in energy policy. Congress’s 2005 grant of power to the Department of Energy and the Federal Energy Regulatory Commission was eviscerated by two federal appeals court decisions over the next six years. This is why the single project that really will be helped by the current Manchin proposal is the Mountain Valley Pipeline. The bill makes special provision for this project, directing that all actions “necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline shall not be subject to judicial review.”

The Manchin bill does almost nothing to help other energy projects stop endless court demands for further environmental review. The bill does address some less important timing issues so it’s important to keep straight three kinds of time limits:

  1. Time limit for the federal government to complete environmental review. The proposal directs a two year limit for environmental review of major projects and a one year limit for minor projects. Unfortunately, such deadlines are unenforceable—the federal government routinely misses even the statutory deadlines it is trying to meet. The deadlines may even be counterproductive if they encourage courts to stop projects and order further reviews because of concern that review was rushed to meet an artificial deadline.
  2. Time limit for plaintiffs to challenge a project after it receives its permit. This kind of “statute of limitations” is not harmful but of very little use. Smart plaintiffs hoping to stop infrastructure generally sue at the earliest opportunity because the best chance to stop an infrastructure project is before construction begins. So big projects are almost never held up by plaintiffs that waited years after the project was approved to bring their lawsuit.
  3. Time limit for courts to order more review on projects that have already been under review for years. Unfortunately, the Manchin proposal does not put any time limits on courts’ ability to hold up nationally-approved projects other than the Mountain Valley Pipeline. The federal environmental review law, the National Environmental Policy Act (NEPA), is a procedural statute simply intended to ensure the government did sufficient environmental review of a project. If the federal government has been reviewing the environmental consequences of a project for years and has approved it, and the court would still like more review, the court can order the government to do more review. But it is not reasonable to make a nationally-approved project, and all the consumers and producers that depend upon it, wait for the court and government to reach agreement on how much environmental review is enough.

The crucial importance of a time limit on judicial delay of projects is well explained in the Institute for Progress’s excellent recent report on “How to Stop Environmental Review from Harming the Environment“:

The time limit that would likely have a major impact on outcomes is restricting the ability of the courts to issue injunctions against projects that have undergone extensive environmental review under NEPA. This change would provide developers the certainty they need to invest in large-scale build outs of solar, wind, transmission and other clean energy infrastructure. Without a time limit on judicial injunctions, developers have a sword of Damocles perpetually hanging over their head, threatening the entirety of the project.

As it stands, the Manchin permitting proposal would be a serious lost opportunity that would be unlikely to significantly speed up construction of new energy projects. The focus on federalizing review of clean energy projects is particularly unhelpful when the proposal doesn’t address the problems that are making federal review the bane of energy project developers.

The good news is that the Manchin proposal could be improved relatively simply if it added limits on federal court and state delays on federal projects. Speeding up permits for nationally-approved projects would accelerate construction of all the new energy projects that it designates for federal review.

Oyewunmi on Permitting Offshore Wind Farms

In the aftermath of the new law funding clean energy sources, Tade Oyewunmi of the University of North Dakota sends in a timely new paper on some of the challenges facing companies looking to build offshore wind energy, and some of his suggestions for streamlining.

Here is the abstract for his paper, which is titled “The Regulatory State and the Emerging Offshore Wind Energy Market,” and is forthcoming in in the Arizona Journal of Environmental Law and Policy:

Offshore wind energy systems are generally regarded as variable baseload technologies and can therefore serve a crucial role in a net-zero or carbon-neutral electricity supply grid. With the spate of growing commercial and government-policy interests in offshore wind, it is important to examine how and to what extent the framework for assessing and reviewing project plans, as well as the process of engaging with impacted stakeholders, or alternative users of the outer continental shelf, can become more efficient and less controversial. Thus, this paper discusses the emerging offshore wind energy market in the U.S. and highlights the role of the regulatory state in facilitating a more efficient leasing and permitting process for projects without compromising the protections afforded under applicable laws and regulations. Adopting a compressive and standardized review of relevant project plans and proactive stakeholder engagement processes is recommended at an early or appropriate time during the permitting process. Understanding the opportunity costs of delayed and canceled projects, addressing misperception of risks, and standardizing best practice measures for addressing common issues identified from review processes could go a long way in making a project’s impact assessment and permitting framework more efficient while protecting the environment and legitimate interests of other users in the outer continental shelf.

The new paper can be found here on SSRN.

Permitting Reform to Put New Energy Funding To Use

On Sunday, August 7, the U.S. passed new legislation that provides $370 billion dollars for a wide variety of technologies in the energy and climate sector, including renewable energy, carbon capture, and electric vehicles. The House of Representatives is expected to pass this legislation tomorrow, Friday, August 12, so it may soon be enacted into law.

The strange thing about this huge spending on new energy sources is that high energy prices already promise financial rewards to anyone who can build the new energy infrastructure America needs for more reliable, affordable, and secure energy supplies. Unfortunately, these power-lines, pipelines, and clean energy projects are being held up by our sluggish permitting system. To put its new spending to good use, Congress must adopt permitting reforms that will make it easier to build America’s future energy system.

Our energy infrastructure is aging because it is simply too difficult to build new energy projects. More than half of American crude oil pipelines were built before the National Environmental Policy Act, which mandates lengthy environmental reviews was adopted in 1970; they are more than 50 years old. The nation’s largest grid manager, PJM, recently requested a two-year pause before adding any new solar projects because of how far behind it is in updating its grid to accommodate new energy sources. Opponents of new energy sources are finding more and more ways to ensure that new projects cannot get built.

Much of the massive new funding for energy will be in vain if projects cannot get the approval they need to begin construction. In the run up to the legislation, lawmakers and the media often cited models showing the bill would reduce U.S. emissions 40% by 2030. But although studies find that the average new transmission project takes over ten years to complete, these models “assume many of these projects will be built” in the next seven years to bring more renewable energy to the grid.

The good news is that, in return for supporting the energy spending bill, Senator Manchin reportedly received a commitment from Senator Schumer and Speaker Pelosi to support a bill to speed permitting for energy projects. The bad news is that the outline of the permitting bill released by Senator Manchin’s office does not yet specify serious steps to speed permitting. For example, it would “set maximum timelines for permitting reviews, including two years for National Environmental Policy Act reviews for major projects.” If accomplished, this would be a huge improvement over the current system where, as I explain in this video, National Environmental Policy Act average over five years.

The problem is that simply telling the federal government it has a two year deadline for its review will not accomplish much because the federal government routinely misses such deadlines. And courts could still strike down the review if they believed it was rushed or incomplete.

The key to watch is whether an emerging compromise imposes hard limits on courts and states’ ability to slow down federally-approved energy projects. In the past, I have proposed that if the federal government has approved a project, and more than five or six years have passed since the government began considering it, the courts should no longer be able to prevent the project from beginning construction. (Proposal is at pp. 304-305.) I defended that position in the Congressional testimony below. (My five-minute testimony starts at 49:28.)

If Senator Manchin’s permitting bill doesn’t take real steps to speed up permitting, it will be an important missed opportunity to build a better energy future.

Build Up Before You Tear Down (or Subsidize): Easing New Energy Infrastructure

As energy prices have risen over the past 20 months, there has been growing clamor for solutions to make our energy system more affordable and more secure. Unfortunately, these discussions are often sidetracked by debates about 1) proposals to subsidize energy use to reduce its apparent costs and 2) debates about how quickly we should transition to cleaner energy sources.

The latest proposal is President Biden’s plan to suspend federal taxes on gasoline and diesel fuel for three months. These taxes help pay for the infrastructure—highways and bridges—that drivers use. Unfortunately, waiving this tax may not help drivers much because many refineries closed down in the last twenty months and the remaining refineries are already producing as much fuel as they can and barely keeping up with fuel demand. This shortage makes it very hard for refiners to lower prices. If they lower prices, more Americans will purchase fuel and we may actually run out of fuel supplies.

Ultimately, prices will only fall when there is enough energy production to comfortably meet energy demand. Unfortunately, our current approach to encouraging energy supplies is too reliant on tax breaks and dollar subsidies for new energy sources. The problem with these subsidies is that like the proposed “gasoline tax holiday,” they simply bid up the price for energy supplies if there are other roadblocks that prevent energy production.

As I explain in a recent op-ed in the The Hill:

The current challenge is securing investment in energy sources that could quickly ramp up supplies of reliable, affordable energy. Unfortunately, clean energy funding alone will not accomplish this. Investor hesitation is often driven less by pure financial concerns than by slow permitting processes that can delay or stop new infrastructure. Think of the 2009 stimulus, which put a record $8 billion toward high-speed rail, yet nothing has been built in America because of permitting delays — something that is holding up so many infrastructure projects around the country. 

James W. Coleman, Biden’s Approach to Climate Action Drives Energy Conflict, Not Cooperation, THE HILL, Jan. 26, 2022 (suggesting Carbon Matching Commitments as an alternative method of encouraging climate action)

Instead, government should focus on removing the permitting roadblocks that are holding up so much energy infrastructure. Easing permitting would help lower the cost of both oil and cleaner sources such as natural gas and renewables because they are often held up by the same roadblocks. As I explain in another recent op-ed:

The problem with arguments about the pace of the energy transition is that an orderly transition has two parts: first building new energy infrastructure and then restraining, and eventually retiring, older energy infrastructure.

One of the main reasons for the current crisis is that the world has gotten these two steps out of order. Governments and litigants have developed legal tools to stop new fossil fuel infrastructure. Think of the demise of the Keystone XL oil pipeline, the Jordan Cove natural gas export facility, or the Constitution gas pipeline. But we have not built enough geothermal and nuclear power, or enough new power lines to bring renewable energy to market.

In fact, the legal tools developed to stop oil and gas projects, such as expanded environmental reviews and state permitting challenges, are now used to stop the infrastructure that could bring clean energy to market. The focus on further subsidies to renewable energy is beside the point when what these maturing energy sources really need is permission to build power lines to take them to market.

James W. Coleman, How America Can Survive Ukraine War’s Gas and Oil Crisis – and Build a Stronger Energy System, FOX BUSINESS, Mar. 9, 2022

The important debates about the pace of energy transition will continue, but for now the urgent priority must be making it easier to build all kinds of energy infrastructure. That is the only way to see the return of abundant energy supplies.

Guest Post: Electric Grid Failures are not Grist for Partisan Fights

By David Spence

Transmission towers above snowy Katy Trail in Dallas, Texas (Feb. 2021)

Last summer California and Texas experienced almost simultaneous periods of very high electricity demand, triggered by hot weather. The California system struggled, experiencing several days of rolling blackouts; the Texas system did not. Characteristically, Texas Republicans (Ted Cruz among them) taunted California on social media, blaming renewable energy and over-regulation in the California market.

But what goes around comes around. This week the Texas’ grid failed in the face of an extended system-wide cold snap that froze power plant equipment and disrupted fuel supplies. No generation technology was left unaffected, but the bulk of the missing generation was natural gas-fired. That gave some on the left a chance to point the finger at fossil fuels and the less regulated Texas market design.

But neither crisis represents a fatal flaw in any particular electric generation technology, or either state’s market design.

As an initial matter, this is not about “privatization.” Most of the generators and sellers of power in Texas, California and elsewhere are privately owned and always have been.

It is true that the Texas market is lightly regulated, with easy market entry and access to transmission (but more price risk) for generators. There is competition and market pricing in both wholesale and retail markets. It is the only market in the country that depends almost exclusively on free-floating wholesale power prices to incentivize investment in new power plants. (Observers have long argued about whether that is enough of an incentive.) The state has no meaningful renewable energy or climate goals, but has nevertheless experienced massive investment in wind generation, giving Texas more wind capacity than any other state. The future promises a similar investment boom in solar generation. Retail power prices are low.

California, having suffered a breakdown in its competitive wholesale power market 20 years ago, is understandably wary of unrestrained competition. Its market has some competitive features but tighter controls designed to ensure both reliability and a cleaner energy mix. A spate of state climate and clean energy laws have led to the construction of more solar generating capacity and battery storage than any other state, and lots of wind too. Retail power prices are high, but most Californians don’t seem to mind.

And despite Texas’ lack of a climate policy, some proponents of a transition to a low carbon future actually like many aspects of the Texas market design.

Price competition and easy market entry benefit wind and solar plants because they are the least expensive forms of electricity generation. And some like that the Texas market rules allow wholesale prices to rise far higher during times of scarcity than they can in other markets, because that incentivizes conservation and demand reduction.

In competitive electricity markets in the northeastern United States (unlike Texas) some generators can qualify to be paid to be available as reserve power in the future. Some proponents of a green energy transition don’t like these “capacity payments” because they tend to go to coal- and gas-fired power plants.

So light-handed regulation has some unintended climate pluses. 

On the other hand, Texas owes its wind boom in part to a big departure from free market orthodoxy. It decided in 2005 to build new transmission lines connecting windy west Texas to cities in the east, spreading the cost of the lines across the entire customer base. Texas was able to socialize transmission costs that way because its grid is sealed off from the two big interstate grids that cover the rest of the lower 48 states. That isolation avoids federal regulatory jurisdiction, which arguably prohibits that approach to transmission financing elsewhere.

It is true that some of these features of the Texas market have led to lower generation reserves than the rest of the country. Experts have long debated whether that feature will trigger more outages in the future. But that was not the culprit this time. Even if Texas had more generating reserves, those plants may have been incapacitated by the cold snap too.

Rather, it was mistaken judgments about insuring against a low probability disaster that led to this crisis, and those judgments concern reliability rules and standards, not the Texas electricity market design.

The isolation of the Texas grid did prevent Texas from accepting a helping hand from neighboring states. Texas politicians seem in denial about that, either peddling the “wind farms are to blame” lie or the debatable notion that independence and self-reliance are worth the price of crises like this one.

February 18 marked the fourth and final day of the power outage at our house in Austin, and we remain under a boil water advisory as of this writing. We were lucky to find temporary heated shelter. Others will suffer much more, and some will die.

But it is a waste of time to use grid failures like these as ammunition for online ideological or partisan battles. Recognize them for the tragic failures they are; but think of them also as learning opportunities that will help grid operators and managers of power markets do better next time.

That isn’t a dramatic lesson, but it is a better one.

Both Texas and California experienced grid failures, and both will learn and adapt. Climate change will bring more severe weather more often. That, and the rapid growth of renewable energy will pose challenges for grid managers. But regulators and grid operators will find a way to provide reliable and affordable electricity anyway, because consumers (read: voters) will demand it. 

Those solutions may not be the same solutions everywhere, but that is as it must be. One size has never fit all in the American electricity sector.

Energy Tradeoffs Podcast #42 – David Konisky

This week’s EnergyTradeoffs.com podcast episode features Indiana University’s David Konisky talking with Shelley Welton about his research on “Public Attitudes on Energy & Climate.”

David and Shelley discuss David’s research on what Americans believe about different sources of power. David finds that people mostly judge power sources based on their local environmental harms and their cost. They tend to be very favorable toward renewable sources, less favorable toward fossil fuels, and conflicted about nuclear power. David explains that many are more comfortable with traditional regulation such as emissions standards rather than market-based approaches to limiting carbon emissions. The discussion relates to a 2016 book that David wrote with Stephen Ansolabe, Cheap and Clean: How Americans Think About Energy in the Age of Global Warming.

Shelley and David also discuss a newer article that David coauthored with Sanya Carley and Stephen Ansolabe, “Are all electrons the same? Evaluating support for local transmission lines through an experiment.” In the paper, they examine local opposition to new energy infrastructure projects and find that it may be possible to provide information to landowners that would make them more favorable to new transmission lines designed to enable more renewable power.

The Energy Tradeoffs Podcast can be found at the following links: 
Apple | Google

Energy Tradeoffs Podcast #39: Hannah Wiseman

For this week’s EnergyTradeoffs.com podcast interview, we have David Spence interviewing my friend and co-author Hannah Wiseman, now at Penn State Law – University Park, about her research on “Balancing the Local Costs and Wider Benefits of Energy Development.”

Hannah and David discuss her research on how to address energy projects that have concentrated costs in local communities but broader benefits to the economy and energy system—such as natural gas fracking and solar and wind farms. At times, states have responded to local opposition by stripping communities of local control over energy development, but that can leave important externalities unregulated. Hannah suggests that taxation might be a better way to address these externalities.

Hannah has a forthcoming paper titled “Taxing Local Energy Externalities” forthcoming in the Notre Dame Law Review. And along with Tara Righetti, we have just published a paper in the Yale Law Journal Forum on “The New Oil & Gas Governance.” Hannah also cites Kristen van de Biezenbos‘s important argument on oil company negotiations with local communities, “Contracted Fracking.

The Energy Tradeoffs Podcast can be found at the following links: Apple | Google

Energy Tradeoffs Podcast #36 – Scott Burger

This week’s EnergyTradeoffs.com podcast episode features David Spence interviewing MIT’s Scott Burger about his research on “How to Value Distributed Energy Resources.”

David and Scott discuss the problems that can arise if rooftop solar is overcompensated through net metering when rooftop solar is mostly installed by wealthier customers. Scott and his colleagues “simulated rooftop solar adoption across single family homes [in] the Chicago, Illinois area” and found that bills dropped for rooftop solar adopters and rose for those who didn’t adopt. This tended to increase costs for low-income consumers “[b]ecause adopters are (on average) wealthier than non-adopters.”

The discussion builds on one of Scott’s recent articles: “Why Distributed? A Critical Review of the Tradeoffs Between Centralized and Decentralized Resources,” which was published last year.

The Energy Tradeoffs Podcast can be found at the following links: 
Apple | Google

Energy Tradeoffs Podcast #34 – Michael Wara, Part I

This Thursday’s EnergyTradeoffs.com podcast features Stanford University’s Michael Wara talking with David Spence about his research on California’s wildfire policies. This week’s podcast episode is the first part of a two-part series on “PG&E’s Wildfire Liability and Bankruptcy: Who Pays?”

This episode focused on wildfire causes, liability, and victims. David and Michael talk about why Northern California has been so vulnerable to fires in recent years, including how fire prevention practices have differed from those in Southern California. They also discuss why utilities have been shutting off power to avoid fires and how customers have responded to the risk that their power supply will be cut off.

Michael appears frequently in the media as an expert on PG&E, wildfires, and liability. Just last week he released a new NBER working paper on “The Changing Risk and Burden of Wildfire in the US.” If you’d like more background on wildfire law and policy, I can recommend two articles by Karen Bradshaw of Arizona State: a 2010 piece titled “A Modern Overview of Wildfire Law” and a 2015 piece on stakeholder collaborations in wildfire policy.

The Energy Tradeoffs Podcast can be found at the following links: 
Apple | Google

Energy Tradeoffs Podcast #31 – Yael Lifshitz

Today’s EnergyTradeoffs.com podcast episode features Yael Lifshitz, from King’s College London, talking with me about her research on “Private Energy, Private Law, & the Green Transition.”

Yael describes her research on how private law interacts with our public policy goals for an energy transition. As one example, she describes how private leases for housing often are roadblocks to installing rooftop solar on rental units. As more people rely on rentals, this can seriously limit rooftop solar. Yael proposes private law solutions that could remove these roadblocks.

Yael also explains her research on conflicts between neighboring landowners over wind power. She describes how extraction of wind power by one landowner can have both local and area-wide impacts. Yael suggests how policymakers can look to water law and oil and gas law for possible solutions to these conflicts.

The discussion builds on two of Yael’s recent articles: “Private Energy,” which was published in the Stanford Environmental Law Journal, and “Winds of Change: Drawing on Water Doctrines to Establish Wind Law,” which was published in the NYU Environmental Law Journal.

The Energy Tradeoffs Podcast can be found at the following links: 
Apple | Google

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