SCHUBE: One Federal Law Has Obstructed Expanding American Energy. Here’s An Alternative

Now that the dust has settled on the so-called “Debt Ceiling Bill,” it is time to reflect upon the significance of the permitting reform provisions included in the bill. Much of the permitting reform discussion has focused on the disapproval of the revocation of the Keystone XL pipeline permit and the approval of the permit for the Mountain Valley Pipeline in West Virginia.

Another focus has been reform to the National Environmental Policy Act (NEPA), which regulates the approval process by which federally-financed projects go through, significantly impacting the energy sector. These reforms, while not solving all of NEPA’s problems, are important because they recognize that NEPA is inefficient, slow, and costly. Each applicant, absent very limited circumstances where an applicant would be excluded from the process, must undergo an evaluation to assess the environmental impact of the project. Most of the focus has been on time and page limitations that the debt ceiling imposes upon federal agencies in this process.

One less discussed provision in the bill, but one that has the potential to make a big impact, is Section 107(f). Section 107(f) in the legislative text requires the agency charged with overseeing the permitting process to “prescribe procedures to allow a project sponsor to prepare an environmental assessment or an environmental impact statement under the supervision of the agency.” “The lead agency shall independently evaluate the environmental document and shall take responsibility for the contents.”

In simple terms, the party that is seeking a permit can now request to perform its own study that assesses the environmental impact of the project. The petitioned agency must “independently evaluate” this document and “shall take responsibility for it.”

Previously, the agency itself, or in some limited circumstances, state government agencies, were the only parties who could conduct these studies. The result, as most government processes tend embody, was long delays, sometimes lasting up to a decade or more. Now, the applicants themselves can perform this study and dictate the length of the process while still ensuring it is thoroughly done. The time limits described above may not help this problem, as the agency is only required to “consult” with the applicant, should the deadline not be met. Section 107(f) gives an applicant more control over the timeline.

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