In a textbook display of raw political power, U.S. Sen. Joe Manchin, D-West Virginia, recently leveraged his position as the necessary swing vote for the Democrats’ climate bill to win a so-called “side deal” whereby President Joe Biden and top congressional Democrats would support the Mountain Valley Pipeline.
Or did he?
There’s definitely a side deal; there’s no dispute about that. And the Mountain Valley Pipeline – which would run 303 miles from northwestern West Virginia to Chatham – is definitely part of it. You can read the full language of it below, as supplied by Manchin’s office. What’s becoming increasingly less clear is just when and how this side deal – officially called “permitting reform” – is going to happen. Or even whether it’s going to happen.
The Washington Post, one of the news organizations that initially reported this deal, pointed out that while the climate bill needed only 51 votes in the Senate (all 50 Democrats plus Vice President Kamala Harris as the tie-breaker) to pass, this side deal would require 60 votes. That means it needs at least 10 Republican votes. The Post foreshadowed the first potential trouble with this side deal, vote-wise: “Republicans have supported similar measures in the past, but the agreement could face defections from liberal Democrats, who have warned against making it easier to open new oil and gas projects.”
In other words, are liberal senators such as Bernie Sanders, I-Vermont, and Elizabeth Warren, D-Massachusetts, both of whom ran for president against fracking (the process that brings most natural gas to the surface), really going to vote for something that speeds up a pipeline? For each Democrat the agreement loses, there will need to be a corresponding Republican sign on (plus, of course, 10 more). How does all that net out? Just because Senate Majority Leader Chuck Schumer agreed to the deal to get the climate bill passed doesn’t mean that other Democrats will. All that raises the question of just when – and how – this side deal will come to a vote, and whether the votes are really there to pass it. Democrats have already gotten Manchin’s vote for the climate bill, but the side deal hasn’t been voted on yet. Further, this deal would have to get approved by the House, too, where Democrats have a clear (although narrow) majority. Are all of them going to go along? Manchin essentially traded his vote for a promise of future action – future action that Schumer may not be able to deliver on. I’m not the only one to wonder about this. The Wall Street Journal recently published a letter raising the same points: “If Joe Manchin were serious about his permitting deal, he wouldn’t have given up all his leverage over Chuck Schumer.” That presumably pro-pipeline letter-writer said Manchin should have insisted his permitting plan pass before he voted for the climate bill. Now he has, though, so when will his plan come up for a vote?
As I’ve pointed out many times before, Congress does not operate in any kind of logical, regular way. In Richmond, bills get introduced and acted on according to a rigidly enforced schedule (the state budget perhaps being an exception). You may not like what the General Assembly does, but you can rest assured that it will operate on a more or less predictable schedule. Washington is nothing like that. Bills only come up for a vote when the party leadership wants them to, no matter which party is in power. Washington is maddeningly inefficient, with far too much power vested in the party leadership to decide what gets voted on and what won’t be. If this were Richmond, we’d all know when – give or take a few days – this deal would come up for a vote. Since it’s Washington, we have no clue. And there’s the thing: Nobody else does either.
Last week, U.S. Sen. Tim Kaine, D-Virginia, held one of his semi-regular Zoom meetings with opinion writers from Virginia newspapers (and news websites). Time was limited so we got one question apiece. I used mine to ask Kaine what he knew about Manchin’s side deal and its prospects. Kaine said he didn’t know.
“There is a side deal that those of us who were not involved in the side deal don’t know – we don’t know what’s in it,” he said. “My understanding is that Sen. Manchin was promised that Congress would take up the matter before the end of the year.” Then came the money quote: “I’ve heard there may be an effort to do this not by standalone legislation but instead just include it in the year-end continuing resolution or appropriations bill.” Kaine went on to explain the significance of that: “If you put something in that bill, it becomes hard to vote against it or analyze it on its own merit because, what, I’m going to vote against it and not fund the Defense Department or Medicaid and Medicare? So exactly how this is going to come up – we’re going to do our best to first look at the merits of it and possibly get our own issues with respect to FERC [Federal Energy Regulatory Commission] permitting and our own improvements into any such bill.”
Let’s break that down: First, there may not be a vote on the “side deal.” It may simply get inserted into one of those massive continuing resolutions where, as Kaine points out, it’s hard for senators to vote “no” because otherwise they’re essentially shutting down the government over some single objection.
Now, I have no inside information – aside from what I’m presenting here – but my political sense tells me that this means Manchin doesn’t have the 60 votes yet. If he had 60 votes, he’d want this side deal voted on now. And Schumer would want it voted on, too, because the longer this drags on without a vote, the more likely it is that opposition will develop. The Mountain Valley Pipeline was just a local issue in Virginia and West Virginia until this side deal. Now it’s a national issue. The Mountain Valley Pipeline has never become a trendy cause celebre the way that opposition to the Keystone XL Pipeline or the Dakota Access Pipeline has been – feel free to speculate on all the reasons why that might be. This deal, though, could help make it one simply by raising its profile. If you’re a pipeline advocate, you don’t want that – you want this deal approved now. If you’re a pipeline opponent, you’ll take all the delays you can get because delays give you time to figure out how to defeat this deal. On the other hand, if you’re a pipeline opponent, your great fear should be Manchin somehow slipping this provision into the continuing resolution – that may be his best way to get a vote without getting a vote, so to speak.
I asked Manchin’s office what it knew about the timing and mechanism for a vote on the deal. I got back a one-line reply: “Hi Dwayne, a summary of the legislation is attached, we don’t have additional details to share at this point.” That tells me either a) there’s no agreed-upon plan for how to get this passed or b) there’s some secret plan for how to get this passed, with the continuing resolution being the most obvious option.
If I were a pipeline advocate, I’d be worried that this whole deal could come unraveled by the time a continuing resolution gets voted on. If I were a pipeline opponent, I’d be moving heaven and earth (just not any dirt) to turn the Mountain Valley Pipeline into a national issue – celebrity condemnations, all that – to make it too politically difficult for the Democratic leadership to let the pipeline get into the continuing resolution.
Further, even if Congress does pass this “permitting reform,” in whatever form that passage takes place, that’s still no guarantee that the Mountain Valley Pipeline gets finished. Grist, a left-leaning news organization focused on environmental issues, published an insightful piece in Salon last week headlined: “In exchange for climate legislation, Joe Manchin was promised a pipeline. Will he get it?” Grist’s summary: “The agreement might not solve the Mountain Valley Pipeline’s biggest problem: compliance with environmental law.”
Here’s the key passage: “The full legislative text has not yet been released, but environmental law experts Grist spoke to said that, based on the summary, it didn’t appear that Manchin is proposing that Congress take the most sure-fire step to ease the way for the pipeline: exempting it from environmental laws. The lawsuits and the Fourth Circuit rulings have been based on arguments about the pipeline’s failure to comply with the National Environmental Policy Act and the Endangered Species Act among other laws. If Mountain Valley was suddenly exempt from those rules, its opponents would have far fewer avenues to stop it.”
Instead, the summary calls on agencies to “take all necessary actions to permit” the pipeline, and for the lawsuits against the pipeline to be transferred to the D.C. Circuit Court of Appeals. But there’s no language that requires agencies to bypass their permitting regulations and there’s no guarantee or mandate that judges there will rule any differently than the ones on the Fourth Circuit Court of Appeals have. Grist suggests that this is the Achilles’ heel of Manchin’s deal: “It directs federal agencies to move quickly to permit the pipeline, which implies that agencies will still need to follow processes mandated under environmental laws. The Fish and Wildlife Service, for instance, is currently reevaluating the impact of the pipeline on two endangered species of fish after the Fourth Circuit Court of Appeals overturned a key permit earlier this year. The new legislation could direct the agency to speed up the review, but ultimately findings from the environmental analysis that the Service conducts are not under Congress’ control.”
Grist quotes one environmental lawyer who calls this a “weird in-between where they’re saying ‘approve it’ but they’re not exempting the [pipeline from] laws that still need to be followed.” In other words, the pipeline might still fail to meet whatever standards are required to be issued the permits that Manchin (and pipeline developers) want.
Maybe this will all get fixed, one way or another. Maybe Manchin will realize his language isn’t as ironclad as he thought and he gets a full-out exemption for the pipeline written into that continuing resolution. Or maybe pipeline opponents stir up enough fuss in Washington that this deal falls through. There are lots of ways to game this out.
All we know for certain is that just because a deal has been done doesn’t mean it’s a done deal.
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Here’s a summary of the deal, as provided by Manchin’s office:
Designate and prioritize projects of strategic national importance.
∙ Direct the President to designate and periodically update a list of at least 25 high-priority energy infrastructure projects and prioritize permitting for these projects.
∙ Require a balanced list of project types, including: critical minerals, nuclear, hydrogen, fossil fuels, electric transmission, renewables, and carbon capture, sequestration, storage, and removal. ∙ Criteria for selecting designated projects includes: reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade with our allies.
Set maximum timelines for permitting reviews, including two years for NEPA reviews for major projects and one year for lower-impact projects.
∙ Require a single inter-agency environmental review document and concurrent agency review processes. ∙ Designate a lead agency to coordinate inter-agency review.
∙ Expand eligibility for the Federal Permitting Improvement Steering Council (FPISC) streamlining and transparency programs to ensure smaller energy projects, critical minerals and mining, and other key programs can benefit from FPISC. Provide FPISC funds to accelerate permitting.
∙ Improve the process for developing categorical exclusions under NEPA.
Improve Section 401 of the Clean Water Act by incorporating improvements from both the Trump and Biden administrations.
∙ Require one of four final actions within one year of certification requests: grant, grant with conditions, deny, or waive certification.
∙ Clarify that the basis of review is water quality impacts from the permitted activity, based on federal, State, and Tribal standards.
∙ Require certification applications to include available information on potential water quality impacts. ∙ Prohibit State or Tribal agencies from requesting project applicants to withdraw applications to stop/pause/restart the certification clock.
∙ Require States and Tribes to publish clear requirements for water quality certification requests, or else default to federal requirements.
Address excessive litigation delays.
∙ Set statute of limitations for court challenges.
∙ Require 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.
∙ Require random assignment of judges for all federal circuit courts.
Clarify FERC jurisdiction regarding the regulation of interstate hydrogen pipeline, storage, import, and export facilities.
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.
∙ Replace DOE’s national interest electric transmission corridor process with a national interest determination by the Secretary of Energy that allows FERC to issue a construction permit.
∙ Require FERC to ensure costs for transmission projects are allocated to customers that benefit. ∙ Allow FERC to approve payments from utilities to jurisdictions impacted by a transmission project.
Complete the Mountain Valley Pipeline. 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.
∙ Require FERC to ensure costs for transmission projects are allocated to customers that benefit. ∙ Allow FERC to approve payments from utilities to jurisdictions impacted by a transmission project.