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Joe Manchin's Legacy Now Depends on Permitting Reform

The National Environmental Policy Act of 1970 no longer serves its intended purpose. For decades activist courts have transformed the law’s modest environmental-review requirement into a litigation nightmare. Hundreds of NEPA lawsuits brought by antidevelopment activists every year add enormous delays and many millions of dollars in costs to the nation’s most critical infrastructure projects—often without any corresponding environmental benefit.

One of the most insightful critics of this dysfunctional system has been West Virginia Sen.

Joe Manchin.

Though we disagree with much of the Inflation Reduction Act—which passed the Senate Sunday and awaits likely approval in the House—we were heartened to see that Mr. Manchin secured a commitment to NEPA reform later this year. The initial list of efficiency-focused reforms is a good start, but it must be only that—a start. Without fundamental changes, activist litigation will continue to put a 100-pound thumb on the scale against the development of crucial energy infrastructure. Mr. Manchin must now pivot to turning his Democratic colleagues’ vague commitment into serious policy.

One way of doing so could be to reunite the co-sponsors of the Federal Permitting Reform and Jobs Act, a bill Mr. Manchin introduced last year, with Republicans

Rob Portman

of Ohio and

Dan Sullivan

of Alaska and Democrat

Kyrsten Sinema

of Arizona. An updated version of the bill could be a perfect vehicle for restoring NEPA to its original form and ensuring that America is able to build and maintain a 21st-century energy infrastructure.

To this end, Mr. Manchin should expand his current list of reforms to include four additional requirements.

First, re-establish the original understanding of who can bring a NEPA action in court. The law itself doesn’t authorize judicial review—and while the Administrative Procedure Act does authorize suits to challenge final agency actions “for which there is no other adequate remedy in a court,” such suits are available only to those “suffering legal wrong because of agency action.” Since the 1970s, however, a game of judicial telephone has distorted this provision by allowing anyone claiming even the barest “injury in fact” to sue so long as their concerns are “arguably within the zone of interests” of the underlying statute.

A reform bill should undo this erroneous reading by limiting the right to sue exclusively to those who have suffered a “legal wrong”—i.e., a violation of a legal right that would confer judicial relief if the defendant were a private party. This would preserve judicial review for those suffering real harms—say, a landowner whose property would be periodically flooded by a federally funded dam project—and not activists claiming aesthetic or similarly amorphous “injury.”

Second, establish a “proximate cause” standard for what kinds of environmental effects are relevant to an agency’s NEPA analysis. This effort should take its lead from the Supreme Court, which held in Department of Transportation v. Public Citizen (2004) that NEPA requires an agency to assess only those environmental impacts with a “reasonably close causal relationship” to the agency’s actions. Restoring this standard would put an end to the current system imposed by regulation that also requires agencies to take into account “cumulative effects” of all similar actions, including speculation about independent actions by third parties entirely beyond the control of the permittee.

Third, provide more than “barely there” protections for electrical-grid reliability. As it stands, Mr. Machin’s agreement would direct the president to maintain a list of at least 25 high-priority energy infrastructure projects for accelerated permitting—including projects to support grid reliability. But any promised benefit from this arrangement is illusory. Nothing would stop the president from immediately filing the prepared list in some dark recess of his desk.

As Mr. Manchin knows, a reliable grid requires a substantial backbone of stable baseload power generation. Aggressive NEPA litigation has stymied this by preventing or delaying the construction of key natural-gas pipelines, leaving many regions without access to affordable and reliable electricity. Without more robust reliability protections, the Inflation Reduction Act’s subsidization of renewables will further weaken a grid that’s already too reliant on failure-prone intermittent sources such as wind and solar.

Fourth, pause for at least a decade any further review by the Environmental Protection Agency of its National Ambient Air Quality Standards, or NAAQS. The U.S. already has the cleanest air of any developed country in the world; the EPA’s current attempts to put in place even more-aggressive NAAQS would make the perfect the enemy of the good. As the Electric Reliability Council of Texas pointed out in recent comments to the EPA, more-aggressive NAAQS would force the premature retirement of many of that state’s remaining coal-fired plants—plants that are essential to avoiding catastrophic mass blackouts like the one that struck the Lone Star State last year.

If Congress fails to reform the permitting system, we will all pay the price. Mr. Manchin knows this—it’s why he’s advocated reforms for years. That the Inflation Reduction Act is making its way to the president’s desk shouldn’t stop him. His legacy depends in no small part on whether his grand bargain delivers a real solution or turns into a political charade.

Mr. Gray served as White House counsel (1989-93) and U.S. ambassador to the European Union (2006-07). Mr. Buschbacher served in the Justice Department’s environment division (2020-21).

Journal Editorial Report: Democrats want more auditors. Guess who’ll get hit. Images: AP/SOPA Images/Getty Images Composite: Mark Kelly

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