Manchin Drops Push to Overhaul Energy Infrastructure Permitting

Conceding he could not rally enough support for his proposal, Sen. Joe Manchin on Tuesday night dropped a bid to attach a controversial overhaul of federal permitting regulations for pipelines and other energy infrastructure to a spending bill Congress needs to pass by Friday to avoid a government shutdown.

“It’s unfortunate that members of the United States Senate are allowing politics to put the energy security of our nation at risk,” Manchin of West Virginia said in a tweet a half hour before lawmakers were scheduled to vote on the spending measure.

“A failed vote on something as critical as comprehensive permitting reform only serves to embolden leaders like Putin who wish to see America fail,” the moderate Democrat added, referring to Russian President Vladimir Putin.

He later told reporters that he was disappointed. “We worked awfully hard,” he said, adding that he was driven to make the country less dependent on other nations for energy. “To do that, we have to have the resources, and we don’t have the infrastructure,” he said.

Manchin’s concession ended a standoff that emerged from a deal he struck with Democratic Senate Majority Leader Chuck Schumer. 

In return for getting Manchin to vote in favor of the Inflation Reduction Act, the massive climate, health care and tax law that President Biden signed last month, Schumer agreed to bring up Manchin’s proposal for a vote. The package Manchin was pushing for included weakening states’ authority to block energy projects under a federal water quality law.

But Manchin’s proposal faced enough opposition from senators of both parties that it failed to attract the 60 votes it needed to clear a procedural hurdle to be considered by the Senate.

The Senate is now expected to pass the spending measure, which will fund the government until Dec. 16, with Manchin’s proposal stripped from it. A vote to proceed with the "continuing resolution" passed on a 72-23 vote on Tuesday night.

By not including the permitting rewrite, the Senate will avert a potential clash with the House, where at least 72 progressive Democrats voiced opposition to Manchin’s plan.

The proposal also drew strong pushback from environmental groups. 

And Senate GOP leaders came out against it as well, particularly after Republican attorneys general from 18 states objected to the proposal, saying it would “eviscerate states’ ability to chart their own land-use and energy policies.”

Raising the ire of the attorneys general were several provisions that clean energy advocates say are needed to build more transmission lines to transport electricity from wind power facilities.

Manchin proposed that transmission projects considered to be of “national importance” be regulated by the Federal Energy Regulatory Commission and not state and local governments. 

His plan would have also allowed the commission to order utilities to build transmission lines it considers to be of national importance. And it would have required customers in other states to help pay for the lines even if they are elsewhere.

The proposal, the attorneys general wrote, would “mean abrogating states’ traditional authority to set their own resource and utility policies, and upset the careful balance of state and federal authority that has been a cornerstone of the Federal Power Act for nearly a century.”

Pointing to the letter in a speech on the Senate floor before the vote, Republican Minority Leader Mitch McConnell, of Kentucky, called Manchin’s proposal a “poison pill” and “a phony attempt to address the important topic of permitting reform.”

GOP lawmakers also said Manchin's proposal does not go far enough and they are backing a more sweeping set of permitting changes proposed by his West Virginia seatmate, Sen. Shelley Moore Capito, the top Republican on the Senate Environment and Public Works committee.

Manchin’s proposal also drew opposition from Republicans who are still unhappy that he supported Biden’s climate, health care and tax package. Some Senate Democrats came out against the permitting plan as well, like Sen. Tim Kaine of Virginia. 

Key players in the clean energy industry, though, had supported Manchin’s effort, saying it would allow wind, solar and other projects to be built faster.

Abigail Ross Hopper, president and CEO of the Solar Energy Industries Association, warned in a statement last week that, “The U.S. electric grid is simply not equipped to handle the significant volume of clean energy that is going to be deployed in the next decade after passage of the Inflation Reduction Act.” 

She added that Manchin’s proposal would particularly help with boosting an inadequate number of power transmission lines. “This is a fundamental challenge for quickly deploying the clean energy necessary to reduce carbon emissions and save Americans money,” Hopper said.

Manchin’s plan also would have required federal approval of the Mountain Valley Pipeline, a controversial natural gas project in West Virginia and Virginia.

And it would have enshrined into law a Trump administration rule restricting how states can consider the effects of projects like pipelines and power plants on the environment, under Section 401 of the Clean Water Act. That rule prevents states from considering broad environmental impacts, like how a project would contribute to climate change, instead limiting them to looking at how discharges from the projects would affect bodies of water.

States have been divided on this issue. Those led by Democrats, including California and New York, have said the rule weakens their power. But eight Republican states, including West Virginia and Mississippi, defended the Trump administration’s limitations in a 2020 Supreme Court case, saying that other states had abused their authority to “veto projects based on non-water quality considerations, such as preferences regarding energy policy.”

Had Manchin’s proposal passed, it would have derailed the Environmental Protection Agency from going ahead with a rule it proposed in June, under the Biden administration, to return the broader authority states had to review projects under Section 401, prior to the Trump-era changes. That updated rule from EPA is expected to be made final in the spring.

Environmental groups also worried that a two-year time constraint Manchin wanted to create for federal agencies to issue permits under the National Environmental Policy Act would have resulted in less scrutiny for energy projects. Manchin’s proposal also would have reduced the amount of time opponents of controversial projects have to fight them in court.