With the clock ticking on a possible government shutdown on Friday, Democratic Senator Joe Manchin late today pulled from a stopgap funding bill his proposed legislation that would fast-track permitting reviews of major energy projects.

Senator Manchin made the move after failing to receive support from Republicans and some Democrats for his “Energy Independence and Security Act of 2022.” The permitting “reform” legislation was part of a deal struck with Senate Majority Leader Chuck Schumer, House Speaker Nancy Pelosi and President Joe Biden to earn Manchin’s vote on landmark climate legislation last month. 

Manchin and Schumer claimed that the permitting fast-track bill had to be rushed through Congress as part of an emergency funding resolution to keep government open because the U.S. allegedly needed to speed up the permitting of liquefied natural gas (LNG) terminals, multi-state pipelines, and other very large energy projects.

However, the bill was criticized from both sides of the aisle – and did not have political support or a sound factual basis. The argument that permit reviews for oil and gas projects must be accelerated did not withstand close scrutiny.  And despite promising not to weaken the Clean Water Act and other environmental laws, the Manchin bill would have done the opposite. The bill would have flat-out ordered federal agencies to approve construction of the controversial Mountain Valley pipeline in Manchin’s home state while prohibiting any judicial review of that decision.

So it is good that the bill was pulled.

A review of recent decisions to issue permits for LNG terminals suggests the Manchin bill was a solution in search of a problem.  The Federal Energy Regulatory Commission (FERC) has the lead responsibility for approving such projects, after determining that they are a public “necessity,” minimize damage to natural and cultural resources as required under the National Environmental Policy Act, and have environmental permit approvals from the EPA and other agencies.

Senator Manchin claimed that this review process typically requires five to ten years to complete. The facts suggest otherwise. Since 2011, it has taken FERC an average of two years and three months to approve permits to build or expand 17 LNG terminals that would export up to 288 million metric tons of LNG. That’s enough LNG to meet nearly 40 percent of global demand in 2030. Only one plant had to wait more than three years to get final approvals.  And often permitting “delays” result from incomplete or poorly written applications, decisions by project developers to pause permitting for financial reasons or to modify the original design, and judges finding that permits themselves authorize more pollution than allowed by law.

Concerned about the impact that rising LNG exports could have on the price and supply of natural gas at home, manufacturers are asking FERC to stop permitting even more export terminals rather than speeding up approvals. If operated at full capacity, the LNG terminals already approved by FERC would gobble up the equivalent of 80 percent of all the U.S. natural gas produced in 2021. Meanwhile, some of the LNG projects approved for construction more than three years ago have yet to break ground, perhaps out of concern that the market is already oversupplied.

In short, while there was no compelling economic need to rush permit approvals for LNG terminals, the environmental risk associated with these projects made it unwise to do so.    

Together, the projects to build or expand 17 LNG terminals in the U.S. are authorized to emit up to 82 million tons of global warming gases, about the amount you’d get from 20 coal-burning power plants. The LNG terminals would also shower communities downwind with thousands of tons of soot, smog-forming chemicals, and other nasty pollutants, and create public safety risks.  For example, the Freeport LNG terminal in Texas has yet to resume operations after an explosion in July shut the plant down.

In addition to new LNG terminals and pipelines, federal and state authorities have issued permits to build or expand more than 500 natural gas processors, compressors, chemical plants, refineries, and fertilizer plants over the last decade. These projects have the potential to emit more than 277 million tons per of greenhouse gases and to release more than 50,000 tons of other airborne contaminants.

There was no “crisis” that justified speeding up permit approvals for oil, gas and petrochemical plants that have such an outsize impact on global warming, public health, and our quality of life.  

The Manchin bill’s proposed approval of the Mountain Valley Pipeline project from West Virginia to Virginia would have been outrageous, in part because its delays have had nothing to do with the speed of permit approvals. The problem with the 308-mile-long natural gas pipeline was not how long it took to obtain government permits to proceed. It took just over two years to secure the approvals needed to build the project, despite determined opposition from many who live along the proposed route.

The problem was that federal courts ruled that those permits were illegal, not once but three times, because they bypassed important requirements of the Clean Water and Endangered Species Act. After local residents sued to challenge the Mountain Valley Pipeline because it would blast through their farms and pollute their rivers, the 4th U.S. Circuit Court of Appeals in Richmond repeatedly ruled in favor of the citizens, including by halting wetlands permits issued by the Army Corps of Engineers. The 4th Circuit also nixed approvals under the Endangered Species Act and authorizations to cross the Thomas Jefferson National Forest.

The court’s concerns were well placed. Despite promises to the contrary, construction of the pipeline has repeatedly flooded nearby wetlands and streams with sediment.  

In retaliation, the most recent available draft of the Manchin bill would have bulldozed through those court decisions.  

The Manchin bill attempted an end-run around the courts by simply ordering federal agencies to approve this project while specifically prohibiting courts from determining whether those approvals violate federal law. That would have set a terrible precedent. For over two hundred years, the Supreme Court has made clear that the U.S. Constitution gives federal judges have the sole authority to interpret laws enacted by Congress (for example, in Marbury v. Madison).  

Was Congress really ready to defy the courts by reversing two centuries of Constitutional law through an amendment to a routine government funding bill? That would have been more destructive than even the worst pipeline accident.

The answer is no.

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EIP Research Manager Alexandra Shaykevich and Research Director Courtney Bernhardt contributed to this analysis.