A tentative political deal reached May 27 to raise the federal debt ceiling includes approval for all permitting of the Mountain Valley Pipeline, the long-stalled natural gas pipeline from West Virginia to eastern markets. The deal also specifies several notable steps to streamline energy infrastructure permitting under the National Environmental Policy Act (NEPA).
The House and Senate still must approve the bill containing the deal.
The text of the bill, called the Fiscal Responsibility Act of 2023, was worked out by House Speaker Kevin McCarthy (R-Calif.) and his team in negotiations with President Biden and a White House team. Public comments made over the course of the talks and May 28 indicated the teams stayed in touch with other leaders of both parties to reduce the risk of writing a bill that would be blocked by dissatisfied members of Congress.
Treasury Secretary Janet Yellen has said the federal government will be unable to pay all of its bills if the debt ceiling is not raised by June 5. Financial commentators have said it would be extraordinarily harmful to the economy if the US government failed to honor its obligations.
Senate Majority Leader Chuck Schumer (D-NY), without praising or condemning the bill, has warned Senate colleagues to be prepared to work through Friday and the weekend on it.
The bill includes a section that embodies some of the proposals that Sen. Joe Manchin (D-W.Va.) had been pushing as part of a campaign for permitting reform that has drawn some bipartisan support.
The bill especially would clear the way for the Mountain Valley Pipeline, an Equitrans Midstream Corp. project that is 94% complete according to the company. It is designed to be a 303-mile, 42-in. OD line with capacity to transmit 2 bcfd of gas to interconnections serving markets in the Mid-Atlantic, Southeast, and Northeast.
“Congress hereby ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to federal law necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline,” the bill says.
The US Army Corps of Engineers must, within 21 days after enactment of the legislation, issue all permits and verifications necessary to complete construction of the line and allow its operation and maintenance, the bill says.
“No court shall have jurisdiction to review any action taken by the Secretary of the Army, the Federal Energy Regulatory Commission (FERC), the Secretary of Agriculture, the Secretary of the Interior, or a state administrative agency acting pursuant to federal law that grants an authorization, permit, verification, biological opinion, incidental take statement, or any other approval necessary for the construction and initial operation at full capacity of the Mountain Valley Pipeline,” the bill says.
It is uncommon for Congress to take an issue out of the hands of the courts. And the bill goes farther by removing the subject from the US Court of Appeals for the Fourth Circuit, where a three-judge panel has for years blocked completion of the project by overturning decisions of the Corps of Engineers, the Bureau of Land Management, the US Forest Service, and US Fish and Wildlife Service. The bill says any challenge to this new law must be brought in the US Court of Appeals for the District of Columbia Circuit.
The D.C. Circuit is not necessarily any friendlier to projects opposed by environmental groups, as was illustrated just a day before completion of negotiations on the debt ceiling bill. A three-judge panel of the D.C. Circuit ruled May 26 that the FERC would have to provide yet more environmental analyses or else better explanations for why more analyses were unneeded for its approval of the Mountain Valley Pipeline.
If Congress passes the debt ceiling bill, that D.C. Circuit decision presumably would become moot.
The Fiscal Responsibility Act of 2023 would require environmental assessments (EAs) to be completed in 1 year and 75 pages, not including citations or appendices. An environmental impact statement (EIS) would need to be completed in 2 years and 150 pages, or in 300 pages for projects of extraordinary complexity, also not including citations or appendices. The time periods allowed would only start after a project sponsor completes an adequate right-of-way application.
An EIS would be needed if the project will have a reasonably foreseeable significant effect on the quality of the human environment. An EA would be needed for less impactful projects unless they are covered by “categorical exclusions,” which are approved by Congress and implemented by regulators to avoid what are judged to be redundant or otherwise unneeded analyses.
No federal environmental analyses would be needed for permits if those permits are not considered major federal actions. The bill says “major federal action” will not include projects with “minimal federal involvement where a federal agency cannot control the outcome of the project,” or projects with minimal federal funding, and activities or decisions that are non-discretionary.
The bill would require that a project in need of federal permits must have a designated lead agency that will develop a work schedule for all agencies involved and will need adequate explanations for why a deadline cannot be met.
Calls for opposition
Environmental activists have generally opposed NEPA reforms. The Sierra Club issued a call May 29 for Congress to reject the bill and pass a clean debt ceiling bill. The group said congressional Republicans have “held America hostage” by threatening to default on America’s debts. The Center for Biological Diversity issued a similar statement.
Rep. Raul Grijalva (D-Ariz.), ranking member of the House Natural Resources Committee, decried the negotiated deal with a May 29 statement saying, “There is no room for compromise when it comes to our bedrock environmental laws.”
Democrats cannot stop the bill in the House if Republicans remain united, but it remains to be seen whether activist Republicans will be satisfied by the deal.