This week, just after Senate lead negotiators met to discuss permitting reform legislation, the Eno Center hosted a webinar to discuss their discussions and the legislation they’re currently negotiating. The Senate meeting included the committee leaders from the Energy and Natural Resources Committee (ENR)—Senators Mike Lee (R, UT), and Martin Heinrich (D, NM)—along with the Environment and Public Works Committee—Senators Shelley Moore Capito (R, WV) and Sheldon Whitehouse (D, RI). While it did not result in any bill text being released, the Senators reported alignment in their goals and a commitment to releasing bill text in September (at the earliest).

The Eno webinar featured panelists Fred Wagner of Jacobs Engineering, Xan Fishman of Bipartisan Policy Center, and Ryan Bernstein of McGuire Woods Consulting, and is available to watch online. The panelists acknowledged that permitting reform is never easy, which is why success has been elusive in prior attempts, however the strong bipartisan interest in achieving reforms may make this latest attempt successful this Fall.

Democrats come to the negotiating table seeking changes to facilitate the buildout of transmission and restart renewable energy projects blocked by the Administration while Republicans have a long-term interest in speeding deployment of infrastructure. What makes the work this Congress potentially more successful is the potentially shared interest in pursuing a mode/energy-source neutral approach to reform and the sense that all types energy infrastructure—both fossil and renewable—as well as non-energy infrastructure, can benefit from changes to provide more certainty. More complicated is how to ensure that implementation remains neutral across changes in Administration so that long-term projects can be certain that approvals will remain good.

It’s also clear that the Trump Administration is eagerly pursuing regulatory changes to minimize permitting timelines, but panelist opinions varied on whether that will encourage Congress to take action to clearly establish Congressional intent or will undermine Congressional appetite for negotiations.

The bill that may emerge in September is likely to focus on the energy sector rather than transportation, for which the environmental and judicial review process has already been modified in ways that are now being discussed for energy projects, including a shorter statute of limitations. That said, there may be changes that could have impacts for transportation projects as well. In particular, negotiators have allegedly discussed changes to the Clean Water Act, which could have implications for Section 404 permits for dredged or fill material or Section 401 permits for Water Quality certification. Negotiators may also weigh in on the National Historic Preservation Act, particularly in light of proposed changes to the Section 106 regulations, which could also have impacts to transportation projects.

Despite having some degree of bipartisan interest, the webinar panelists speculated that passage of a permitting reform bill will most likely need to be carried on another “must-pass” bill such as a National Defense Authorization Act (NDAA) or a government funding bill. The surface transportation reauthorization could have been a contender for the vehicle as well, but with that bill also being delayed past the September 30 deadline, the likelihood that a permitting bill will be added to the surface bill have declined.

Past changes in law for permit processes have been a mixed bag in terms of overall impact, and implementation has not always achieved the goals that Congressional negotiators envisioned. Nonetheless, the webinar panelists remained confident that the changes being discussed to the permitting review process, particularly for energy projects, would be both necessary and impactful.