5 minute read
Legislative Affairs
by Greg Schildwachter
WSF Lobbyist
PERMITTING REFORM
One of the oldest ideas in conservation—that scientific analysis should guide decisions—is now up for serious debate. This is going to be hard.
This fall, Congress will debate speeding up federal approvals for projects. Mainly, this will be about where and how pipelines, wind turbines, solar panel farms, and transmission lines should be built.
This is not the same drill as in the 1980s and the 1990s when Republican presidents and Congressional majorities bemoaned red tape and delay. This time, it is the Democratic Congress and White House. Sen Joe Manchin (WV-D) has proposed changing permitting rules. Senate Majority Leader Chuck Schumer (NY-D) has committed to including changes in the year-end spending bill. They are reasoning that decisions on energy projects must come faster to meet the president’s goals for addressing climate change. Climate is driving the issue and most of the changes will likely focus on that. But that is a wide focus and any changes that accelerate those projects will be demanded for others. Building wind and solar energy get most of the attention now. But mining for the minerals needed for batteries and components is also on the list. Constructing highways and water developments were among the first cases of streamlining, as were forestry and grazing.
The question is whether we can save time without losing confidence that we are making the right decisions.
The National Environmental Policy Act (NEPA) is central to this debate. This is the well-known law requiring environmental studies. Those studies take years in most cases. After the studies, more years pass in resolving objections to the decision before action begins.
But NEPA is not alone in setting the pace of decision making. Decisions of any kind involving federal approval require many separate approvals under the Endangered Species Act, Clean Water Act, Historic Preservation Act, and others.
It’s ironic that something as green as climate change would lead to the idea of changing “bedrock environmental laws,” but this is only the latest sign that something must give.
The Federal Land Policy and Management Act has already been “streamlined”. In 2014, Congress formalized 10 years of incremental change to the review of grazing permits. The new law essentially waived the NEPA responsibility of the Bureau of Land Management and the Forest Service to analyze grazing allotments before re-issuing the permits to use them. Backlogs of permit review were growing before and have continued since. Of the 18,000 grazing permits issued by BLM, 10,000 – 55% – have not been reviewed.
WSF is working with partners to clear the permit backlog. Congress has proposed an additional $2 million for the BLM budget, but no one knows how many reviews that will buy.
For this issue and others like it, there are policy arguments and political realities. Both are hard.
In permitting reform, the most common idea is to apply deadlines for final decisions. Another idea is to make collaborative decision making an official part of the process.
But deadlines do not ease the requirements for gathering and documenting information. Unless we know the work can be completed more efficiently, deadlines do not help.
Collaboration has been proposed as a better fix. This gets closer to the root problem that people disagree on the “right” decision regardless of analysis. Experience has shown, however, that this process also takes considerable time, and that there is no way to form a manageable group that represents the many views of people directly interested (usually the locals), and the many more people indirectly interested (anyone in the whole country).
A more promising idea comes from an unlikely source: the Internal Revenue Service. Tax law—as complicated as it is—assumes that every taxpayer will follow the rules. To check on this, IRS audits compliance.
If federal approvals worked this way, agencies could approve projects with far less up-front analysis and confirm compliance by monitoring results. The Clean Water Act uses this idea for Nationwide Permits. These permits are issued to no one in particular. They can be used by anyone with a project that fits its criteria. The Corps of Engineers “audits” a sample of these projects every year to ensure they are used properly.
This reverses the NEPA principle of “look before you leap” to “trust but verify”. The two are not an all-ornothing choice. The Corps still issues site-specific permits too. If the BLM and Forest Service tried this, we may end up with more useful information.
But the hardest thing about permitting reform is the role it plays politically. Everyone uses the rules to their greatest advantage in getting the decisions they want. New rules force new strategies against resistance. Our strengths in this debate is the clarity of our mission to Put and Keep Wild Sheep on the Mountain®, and our commitments to science and multiple use. WS
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