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Proposed Bill Poised to Undermine Bedrock Environmental Laws

Updated: Dec 16, 2022

Senator Joe Manchin. Photo from Wikimedia Commons.

You may have heard rumblings about a new bill working its way through Congress that is splitting the environmental community. The Manchin-Schumer Energy Independence and Security Act of 2022 (EISA) is the result of a side deal that Democratic Party leadership agreed to in order to win the support of Senator Joe Manchin during the debate over the Inflation Reduction Act. To some, this side deal is necessary to fight climate change. To others, the bill, nicknamed the “Dirty Deal,” will doom our planet. With all of the rhetoric, it can be hard to actually understand what this bill is and what exactly it does. So, I thought I’d do my best to explain it and offer my two cents on how environmentalists should respond to the proposed bill.

The bill is the result of Senator Manchin’s belief that our Nation’s environmental laws make energy projects too costly and time consuming to complete. The bill uses the term “energy project” broadly to include oil drilling, mining for the rare minerals necessary to produce batteries, and renewable energy projects like solar and wind farms. Basically all of these projects, if they occur on federal lands or require a federal permit, go through a process called NEPA review.

NEPA, otherwise known as the National Environmental Policy Act, is our nation’s bedrock environmental law. The law requires federal agencies to analyze the impacts of a proposed decision (such as a decision to grant a permit or authorize a project) and consider alternatives that may be better for people and the environment. NEPA also requires agencies to include the public in agency decision-making, by providing the public with full information about a project’s environmental impacts and alternatives, and by enabling informed public input to the agency before it makes its permitting decision. EPIC frequently uses NEPA to influence and challenge federal timber sales, for example.

Critics of NEPA see it as costly, time-consuming and unnecessary, and have been trying to undermine it practically since the day the law was passed. When critics of NEPA want to try to sell their criticism to environmentalists, they often focus on the fact that renewable energy projects can be held up by NEPA. But, it shouldn’t surprise you that these critics are often the CEOs of large mining and oil companies, or that an early draft of EISA was written by the American Petroleum Institute.

The bill would severely limit NEPA’s environmental analysis for mining and energy projects by restricting alternatives analysis, allowing agencies to rely on out-dated research, creating new categorical exclusions, and reducing the amount of public comment to a maximum of 60 days. These are just a few of the worst examples of changes proposed for these kinds of projects. Others include shortening the statute of limitations to file a lawsuit under NEPA, reducing the requirements of Federal Clean Water Act permits, and limiting the total review period to two years for major energy projects. Everywhere you look, the bill acts under the assumption that there is a “correct” outcome during environmental review and that currently mandated requirements such as considering alternatives or listening to the community are merely bothersome nuisances that ought to be curtailed.

While this bill is limited to energy and mining projects, it signifies a willingness on the part of Democratic Party leaders to sacrifice environmental review for short-term political gains. This is deeply concerning to EPIC because other kinds of federal projects, like timber sales, may be next to have their environmental review curtailed. Instead of demonizing environmental review and holding it up as the cause of our nation’s problems, our representatives should be celebrating the fact that environmental review significantly increased the environmental quality in this country since NEPA was first passed in 1970. Whether EISA will pass remains to be seen. More progressive politicians, such as the North Coast’s Congressman Jared Huffman, have been vocal in their opposition to the bill because of its potential to harm the environment, and many Republicans have voiced opposition to the bill on the grounds that it doesn’t go far enough to denude our Nation’s environmental laws. Whatever happens, this is a clear attempt by pro-industry groups to weaken one of environmental organizations like EPIC’s main tools for fighting bad projects.

UPDATE: on 9/27/22 Senator Joe Manchin announced he would pull his permitting side deal language from the continuing resolution.


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