Capito throws support behind Manchin's federal permitting reform

Sep. 24—The federal permitting reform proposed by Sen. Joe Manchin, D-W.Va., received a huge boost this week.

Sen. Shelley Moore Capito, R-W.Va., said she will support the reform, which is included in a continuing resolution (CR) that must be passed by Sept. 30 to keep the federal government fully funded and avoid a partial shutdown.

"He got the Mountain Valley Pipeline in there," Capito said Friday of Manchin's permitting reform package. "So, I'm very happy about that. and I like the way it is very similar to mine. Very happy about that. Yes, I will support it."

Capito, with the support of 38 of her GOP colleagues, recently introduced the Simplify Timelines and Assure Regulatory Transparency (START) Act, also a comprehensive federal regulatory permitting and project review reform legislation.

At that time, Capito, who is Ranking Member of the Committee on the Environment and Public Works (EPW), said she had not yet seen the full text of Manchin's proposal so was not sure if she could support it.

But she said the reform related to the Mountain Valley Pipeline (MVP) was a crucial part for her. The natural gas pipeline, which is already more than 90 percent complete, runs from North Central West Virginia to Chatham, Va.

"If it has the MVP, I could look favorably on it," she said.

Manchin released the comprehensive permitting reform text Wednesday.

Manchin also indicated last week that Capito has enough GOP senators on board with her plan that she could bring over for a vote of support of the CR.

"She has the clout," he said, adding that he is confident at least 45 Democrats in the Senate will support the CR but 60 votes are needed to pass.

Capito and Manchin both have worked to get the 300-mile MVP up and running after years of delays primarily related to legal snags on litigation regarding federal permits and court delays.

Manchin's proposal includes a provision to complete the pipeline and reads: "Require the relevant agencies to take all necessary actions to permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction over any further litigation."

The MVP continues to be held up in court over federal permits, the most recent being a decision made U.S. Court of Appeals for the 4th Circuit in Richmond, Va. to invalidate approvals previously granted by the U.S. Forest Service and the Bureau of Land Management (BLM) to construct the pipeline on federal land.

That includes Jefferson National Forest, which the MVP must pass through in Monroe and Giles Counties, with a total of about 3.5 miles on federal land involved. The pipeline also must run under the Appalachian Trail where it crosses the ridge line of Peters Mountain in Monroe County.

Manchin said permitting reforms would streamline the process.

"This bill directs the court system to do the job in a timely fashion and rotate around," he said, referring to having other courts hear the same case. "Other judges need to look at it."

The MVP could be online in about six months if given the green light by courts, he said, and that means natural gas could be flowing to help the domestic market and increase the availability of Liquid Natural Gas (LNG) for the international market.

The project was initially slated to be on line in late 2018 at a cost of $3.5 billion, a price tag that has now risen to well over $6 billion.

Manchin's overall federal permitting reform generally follows Capito's proposal in working to streamline the permitting process, especially for energy projects.

For example, Manchin said that in Canada the permitting process takes three years maximum, but in the U.S. that may be 10 years.

"It impacts all forms of energy," he said, adding that the U.S. has the most excessive permitting process than any country in the world, usually requiring five to 10 years.

The permitting provisions include an array of measures to speed up federal processes in all areas of energy that are designated projects of "strategic national importance."

It also requires a balanced list of project types, including critical minerals, nuclear, hydrogen, fossil fuels, electric transmission, renewables, and carbon capture, sequestration, storage, and removal.

The criteria for selecting designated projects includes: reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade with our allies.

Maximum timelines for permitting reviews will also be set, including two years for NEPA (National Environmental Policy Act) reviews for major projects and one year for lower-impact projects.

Other provisions relate to improvements to the Clean Water Act, limit the statute of limitations for court cases, clarify FERC (Federal Energy Regulatory Commission) jurisdiction regarding the regulation of interstate hydrogen pipeline, storage, import and export facilities, and enhance federal government permitting authority for interstate electric transmission facilities that have been determined by the Secretary of Energy to be in the national interest.

A provision also requires that if a federal court remands or vacates a permit for energy infrastructure, the court must set and enforce a reasonable schedule and deadline, not to exceed 180 days, for the agency to act on remand.

The inclusion of the federal permitting reform proposal in the CR was a compromise made with Manchin by the Senate Democratic leadership for his support for the Inflation Reduction Act.

Manchn said last week if the reform does not pass with the CR, it is "dead," and he urged all legislators to put politics aside and support it.

But even with support in the Senate, Capito said the House may be a different matter.

"Some Democrats are not accepting it," she said of the House, and it is still unclear how may GOP senators will be behind it.

Virginia Democratic Sens. Tim Kaine and Mark Warner have expressed opposition to the reform related to the MVP, which crosses Giles, Montgomery, Roanoke and Franklin counties in Virginia.

Specifically, Kaine said in an announcement he is opposed to moving any court jurisdiction related to the pipeline out of Virginia.

Senate Majority Leader Chuck Schumer (D-N.Y.) has set a test vote on the CR for next week.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com