Vol. No. 53-2 Utilities
Retrofitting the Grid: How Senator Manchin’s Permit Reform Could Facilitate an Energy Transition in Texas
Climate change will remain a prominent issue in the United States for decades. Attempting to decelerate global warming will require the country to undergo an energy transition and revolutionize its underlying electrical grid. Partially with this end in mind, Senator Joe Manchin released the text for a bill that would accelerate the permitting process for energy projects across the U.S. The initial ninety-one-page document was never formally introduced into the Senate, and Senator Manchin ultimately failed to tack a shorter version onto a defense spending package in December 2022.
The proposal garnered an onslaught of criticism from all directions, including from Democrats, Republicans, and environmental groups. Much of this criticism centered on the bill’s push for agencies to “take all necessary actions to permit the construction and operation” of a project in Appalachia and expedite the construction of other new fossil fuel pipelines. Regardless of the proposal’s deficiencies, experts acknowledge that some kind of permitting reform is necessary for the large-scale renewable energy transition at hand.
This Note explores the provisions proposed in Senator Manchin’s bill and how it might have impacted the construction of a hypothetical wind energy project in Texas’s High Plains region, which includes forty-one counties in the Texas Panhandle and West Texas. Such a project would require permitting interactions with local governments, state agencies, and eventually the federal government. This Note focuses on three key categories of federal permitting requirements—wildlife protection, air and water protection, and National Environmental Policy Act (NEPA) review—and how they would apply to a proposed turbine project. Then, it explores how these requirements would have interacted with Senator Manchin’s proposed legislation.
Federal Permitting Requirements
Since turbine projects can potentially kill flying animals such as birds and bats, the U.S. Fish and Wildlife Service (FWS) has jurisdiction over any new wind installation in the High Plains of Texas. The statutes that affect new wind turbines include the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Endangered Species Act (ESA). The ESA provides a straightforward example. If a project were to incidentally “take” a species on the endangered species list, FWS must authorize the take through a formal permitting process.
Air and Water Protection
Section 404 of the Clean Water Act requires permitting for projects that discharge dredged or fill materials into protected waters and wetlands. A new turbine project in the High Plains would likely fall under this statute’s jurisdiction due to the presence of playa lake wetlands throughout the region, which are essential to the cyclical recharge of the Ogallala aquifer. These jurisdictional waters would be affected by large amounts of waste product from project construction—both from the turbine facility itself and the miles of transmission lines required to bring the power to population centers like Dallas and Austin.
National Environmental Policy Act (NEPA) Review
NEPA is unlike the above statutes in that it is a procedural requirement rather than a permitting mandate. NEPA requires a two-stage evaluation of the environmental impacts of a proposed federal action and is overseen by the White House Council on Environmental Quality. First, for a new wind project, an agency overseeing the permitting process—for example, FWS for projects affecting land species—must prepare an “environmental assessment” to determine whether the project would have a significant impact on the environment. If the agency determines there would be a significant impact, it must then prepare a longer and more detailed “environmental impact statement” (EIS). This review allows local communities, industry groups, and environmental organizations to comment on the project. Our hypothetical wind installation in the High Plains of Texas would certainly require a full NEPA review.
NEPA tends to be the target of criticism since the review process can be lengthy (a median of three and a half years), although the cause of such delays are in dispute. Even after an agency finishes its EIS, litigants frequently challenge projects on the basis of procedural deficiencies, causing further delays, increasing costs, and stalling momentum for new projects. While NEPA has provided wins for environmental groups, it also poses a hurdle to new renewable energy projects that must be planned for.
How Senator Manchin’s Bill Would Affect This Process
Senator Manchin’s bill would impact a proposed wind facility in the High Plains by accelerating NEPA review and setting a statute of limitations for court challenges. First, the bill defines “major project” as one that requires “multiple authorizations, reviews, or studies” and one that requires an EIS. Since our proposed facility would be a significant public utility, it would likely be classified as a “major project”; this analysis will proceed under this assumption.
As a first step in the accelerated process, the “lead agency”—e.g., the Environmental Protection Agency—would coordinate with each “participating agency”—e.g., FWS for ESA authorization—to create a single environmental document that covers all applicable environmental statutes. Currently, projects may require multiple agencies to create separate documents, such as a “Biological Opinion” prepared by FWS. Additionally, the bill sets a page limit for this singular environmental document of 150 pages, with extra space of up to 300 pages for a project “of unusual scope or complexity.” For major projects, this entire environmental review process should be finished no later than two years after the lead agency provides notice that it will began preparing an EIS. Thus, for our proposed wind facility, if the permitting process would begin now, environmental review would be statutorily required to conclude by 2025 rather than 2026 or later. If an agency in this process fails to meet the deadline, the project sponsor may petition a court to issue an order to the agency to complete its task within ninety days.
Should the involved federal agencies, state officials, or project sponsors reach an impasse, the bill sets forth prescribed dispute resolution schedules to keep the major project moving forward. Regarding potential litigation for a project, the bill sets a statute of limitations of 150 days after an agency finalizes the permit application and requires the reviewing court to undergo “expedited consideration.” If any aspect of the environmental document is remanded, the court must set a “reasonable schedule” to fix the deficiency, not to exceed 180 days from the initial court order.
An additional aspect of Senator Manchin’s bill would assist with creating the expansive new transmission lines required for wind energy expansion in the High Plains. Should the transmission lines be trapped in the CWA state-certification phase, the bill would empower the Federal Energy Regulatory Commission (FERC) to issue a construction permit for transmission siting. Since any new transmission lines for a wind project in the High Plains would likely be attached to the interstate electrical grid, this reform would likely apply to the theoretical wind facility. Thus, in this case, if the Public Utility Commission of Texas failed to act on a permit application within one year, FERC might intercede and issue one itself.
Constructing new electrical facilities is an exceedingly complex process. Even One could easily get lost digging through the text of the permit reform legislation and its numerous exceptions, deadlines, and chokepoints which could kill a new project. This Note only touches the surface of the regulatory requirements that must be met before applicants can construct new facilities. There is no doubt that some reform is needed to expedite the energy transition. Senator Manchin’s bill provides a starting point for legislators and regulators to consider how to best balance environmental interests while facilitating the transformation of our energy grid.
Paul Sarahan is a member of Enoch Kever PLLC. He focuses his practice on environmental, safety, and transportation issues. He has 28 years of experience in policy, regulation, and commercial use of the environment and has represented clients in the energy, chemical, manufacturing, transportation, and retail industry sectors before federal, state, and local agencies. Paul is a graduate of the University of Texas at Austin, The University of Texas School of Law, and the University of Houston Law Center’s Energy, Environmental and Natural Resources LL.M. program.
Jesse Bennett is a dual JD/MPAff student in his second year from Rochester, New York. He attended Hamilton College where he majored in economics and minored in history. Jesse joined TELJ as a 1L.
 Shannon Osaka, To Fight Climate Change, Environmentalists May Have to Give Up a Core Belief, The Wash. Post (Sep. 2, 2022, 7:00 AM), https://www.washingtonpost.com/climate-environment/2022/ 09/02/fight-climate-greens-have-embrace-big-energy-projects-fast/; see also Steve Cohen, Fossil Fuels Are Dying, but They’re Not Dead Yet, Colum. Climate Sch.: State of the Planet (Nov. 14, 2022), https://news.climate.columbia.edu/2022/11/14/fossil-fuels-are-dying-but-theyre-not-dead-yet/.
 Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Comprehensive Permitting Reform Text to be Included in Continuing Resolution (Sep. 21, 2022), https://www.energy.senate. gov/2022/9/manchin-releases-comprehensive-permitting-reform-text-to-be-included-in-continuing-resolution (referencing the Energy Independence and Security Act of 2022).
 See Maxine Joselow, Democrats Try to Salvage Manchin’s Side Deal on Energy Projects, The Wash. Post (Dec. 4, 2022, 10:32 PM), https://www.washingtonpost.com/climate-environment/2022/12/04/ manchin-permitting-reform-bill/; Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Permitting Text and Urges Colleagues to Support MVP and Permitting Amendment to NDAA (Dec. 7, 2022).
 Maxine Joselow, Manchin’s Permitting Bill Sets up Dramatic Clash Over Government Funding, The Wash. Post (Sep. 22, 2022, 8:23 AM), https://www.washingtonpost.com/politics/2022/09/22/manchin-permitting-bill-sets-up-dramatic-clash-over-government-funding/ (noting opposition from Senators Bernie Sanders and Tim Kaine); Letter from Jeff Landry, La. Att’y General, et al. to Chuck Schumer, Majority Leader, Senate, and Mitch McConnell, Minority Leader, Senate (Sep. 26, 2022), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-37-letter.pdf (collecting signatures of Republican state attorneys general); Letter from ActionAid USA et al. to Chuck Schumer, Majority Leader, Senate, and Nancy Pelosi, Speaker, House of Representatives (Aug. 24, 2022), https://peoplevsfossilfuels.org/dirty-deal-letter/ (opposing fossil fuel projects and proposed permitting reform); Rachel Frazin, Senate Rejects Manchin’s Energy Permitting Amendment to Defense Bill, The Hill (Dec. 15, 2022, 6:37 PM), https://thehill.com/policy/energy-environment/3776418-senate-rejects-manchins-energy-permitting-amendment-to-defense-bill/.
 Daniel Moore, Mountain Valley Pipeline Shield in Manchin Deal Raises Hackles, Bloomberg L. (Aug. 2, 2022, 12:59 PM), https://news.bloomberglaw.com/environment-and-energy/mountain-valley-pipeline-shield-in-manchin-deal-raises-hackles (quoting the Energy Independence and Security Act of 2022).
 See Shannon Osaka, Why the Defeat of Manchin’s Energy Bill Could Be a Loss for the Climate, The Wash. Post (Sep. 28, 2022, 1:47 PM), https://www.washingtonpost.com/climate-environment/2022/ 09/28/manchin-permitting-reform-climate/.
 See Jayme Lozano, Why the Texas Grid Causes the High Plains to Turn Off Its Wind Turbines, The Tex. Trib. (Aug. 2, 2022, 10:00 AM), https://www.texastribune.org/2022/08/02/texas-high-plains-wind-energy/ (exploring the potential for cheap power from the region and barriers to scaling-up wind facilities).
 Id.; see also Rayan Sud & Sanjay Patnaik, How Does Permitting for Clean Energy Infrastructure Work?, Brookings (Sep. 28, 2022), https://www.brookings.edu/research/how-does-permitting-for-clean-energy-infrastructure-work/ (explaining the federalized process for permitting new projects).
 See U.S. Fish & Wildlife Serv., Land-Based Wind Energy Guidelines 1–4 (2012), https://www.fws.gov/sites/default/files/documents/land-based-wind-energy-guidelines.pdf (introducing and explaining FWS’s statutory authority over wind energy projects).
 See 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”).
 See id. § 1536(a)(2) (requiring formal consultation when federal funding or permitting is involved); id. § 1539(a)(1)(B) (requiring an individual incidental take permit).
 33 U.S.C. § 1344; Permit Program Under CWA Section 404, Env’t Prot. Agency, https://www.epa. gov/cwa-404/permit-program-under-cwa-section-404 (last updated Apr. 20, 2022).
 Panhandle Playa Lakes, Tex. Parks & Wildlife, https://tpwd.texas.gov/landwater/land/habitats/high_ plains/wetlands/playa.phtml (last visited Aug. 1, 2023) (“Playas are shallow, circular-shaped wetlands that are primarily filled by rainfall, although some playas found in cropland settings may also receive water from irrigation runoff.”).
 Rudolph A. Rosen, Texas Aquatic Science Textbook (2013).
 See Sud & Patnaik, supra note 9 (“Wind . . . projects . . . likely  need Clean Air Act and Clean Water Act permits during their construction phases as they entail regular construction pollution.”); Lozano, supra note 8 (noting the need for extensive transmission construction).
 See Sud & Patnaik, supra note 9 (“NEPA does not mandate a separate permit like the other [environmental] laws . . . . Instead, it is a procedural law, requiring an assessment of the environmental impacts of any significant federal action, including any project that the federal government issues a permit for.”).
 Id.; 42 U.S.C. § 4344 (denoting the duties and functions of the Commission on Environmental Quality (CEQ)); see also 40 C.F.R. § 1500.1 (2023) (explaining CEQ’s interpretation of the purpose and policy behind NEPA).
 See 40 C.F.R. § 1501.7 (2023) (establishing that a lead agency will oversee NEPA review for each project); see, e.g., Draft Environmental Impact Statement and Habitat Conservation Plan for Commercial Wind Energy Developments Within Nine States, 76 Fed. Reg. 41,510, 41,511 (July 14, 2011) (“[W]e, the Fish and Wildlife Service, as lead agency, advise the public that we intend to prepare an [EIS] on a proposed application . . . .”).
 See 40 C.F.R. § 1501.5 (2023).
 See 42 U.S.C. § 4332(C) (primary authorizing statute); 40 C.F.R. §§ 1502.1–.24 (2023) (CEQ’s implementing regulations).
 See Sud & Patnaik, supra note 9 (“Nearly every major renewable energy project requires a NEPA review.”).
 Id.; see, e.g., Am. Rivers v. FERC, 895 F.3d 32, 55 (D.C. Cir. 2018) (vacating relicensing for a hydroelectric project on procedural grounds); Pub. Emps. for Env’t Resp. v. Hopper, 827 F.3d 1077, 1090 (D.C. Cir. 2016) (vacating and remanding the EIS prepared for a proposed offshore wind facility in Massachusetts).
 See, e.g., WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1240 (10th Cir. 2017) (striking down an EIS for coal leases and further delaying the project).
 U.S. Senate Comm. on Energy & Nat. Res., 117th Cong., Building American Energy Security Act of 2022 8–11, 38, https://www.energy.senate.gov/services/files/FAED4818-E382-4210-B452-5A3D0D8D58A8?utm_source=DCS+Congressional+E-mail&utm_medium=Email&utm_term=https% 3a%2f%2fwww.energy.senate.gov%2fservices%2ffiles%2fFAED4818-E382-4210-B452-5A3D0D8D 58A8&utm_campaign=Manchin+Releases+Permitting+Text+and+Urges+Colleagues+to+Support+MVP+and+Permitting+Amendment+to+NDA (last visited Aug. 1, 2023) (introduced by Senator Manchin).
 Id. at 4.
 Id. at 3.
 Id. at 4.
 Id. at 14–15.
 See, e.g., Am. Rivers v. FERC, 895 F.3d 32, 44–45, 49–50 (D.C. Cir. 2018) (documenting that the project required both a proper Biological Opinion and EIS).
 Building American Energy Security Act of 2022, supra note 29, at 16.
 Id. at 21.
 See id.; Sud & Patnaik, supra note 8 (noting the median review time for an EIS is 3.5 years).
 Building American Energy Security Act of 2022, supra note 29, at 30–31.
 Id. at 32–35.
 Id. at 38.
 Id. at 38–39.
 Id. at 65.
 See Regional Transmission Organization Map, Fed. Energy Regul. Comm’n, https://www.ferc.gov/ sites/default/files/2020-05/elec-ovr-rto-map.pdf (last visited Aug. 1, 2023) (demonstrating the High Plains region overlaps with an interstate electrical grid); see also NextEra Energy Capital Holdings, Inc. v. Lake, 48 F.4th 306, 310 (5th Cir. 2022) (noting the interstate nature of electricity grids and that Texas’s statute banning out-of-state entrants to its energy markets violates the dormant Commerce Clause).
 Building American Energy Security Act of 2022, supra note 29, at 67–68.