The Five Factors That Will Decide Permitting Reform’s Fate

Washington’s best chance in decades for reforming federal energy permitting is entering the congressional gauntlet. Newly empowered Democrats, opposition from key congressional leaders and tribes as well as a short clock could determine whether the agreement reaches the president’s desk this year.

The Senate on Monday will hold a procedural vote on a permitting bill negotiated over this past Congress by the Republican and Democratic leaders of the chamber's energy committees. Supporters say the lame-duck session represents the last, best opportunity to pass legislation to speed up approvals for energy projects. They have little expectation that the next Congress, led by Democrats, will be able to reach an agreement with the Trump administration.

"There’s no guarantee Congress would ever find another compromise that would be able to pass the Senate," Democratic negotiator Sen. Sheldon Whitehouse of Rhode Island said last week. "It’s a bird in the hand. We’d be fools not to take it."

The bill has drawn broad support from energy and industry groups, business organizations and labor unions. Its passage would mark Congress’ most significant energy policy achievement since the Inflation Reduction Act and a major victory for the lawmakers who negotiated the bipartisan agreement.

Its passage would also mark a victory for the White House, which has made permitting a major lame-duck target.

The permitting overhaul aims to speed up approval of major energy projects across the country by increasing federal power over interstate electricity transmission lines, shortening deadlines for environmental reviews and imposing limits on when projects can be challenged in court. It also seeks to ensure data centers pays for the energy infrastructure needed to power their massive electricity demand.

But some Democrats concerned about the bill's impact on existing environmental and tribal laws — including House Minority Leader Hakeem Jeffries (D-N.Y.) — could prove an obstacle. The four main champions of the bill released a package of amendments Saturday designed to bolster support for the legislation.

Lobbyists are closely watching Democrats, who remain the biggest wild cards heading into the procedural and final passage votes. Supporters are hoping at least 20 Democrats will back the bill in the Senate, producing a decisive bipartisan vote that could build momentum for the package in the House.

Senate Republicans, by contrast, are expected to largely line up behind the bill. House Republicans remain a bigger question mark, with reservations among members of a key committee potentially complicating the legislation’s path through the chamber.

Here are the issues that could determine where lawmakers ultimately land on the Bipartisan American Affordability and Jobs Act.

Tribal sovereignty

The biggest obstacle for undecided Democrats has been fierce opposition from tribal nations to the bill’s provisions affecting the National Historic Preservation Act.

The legislation places new limits on tribal nations’ ability to challenge permitting decisions under the law. The language was a top priority for Senate Energy and Natural Resources Chair Mike Lee, but many tribal nations have strongly opposed the changes, putting significant pressure on ranking member Martin Heinrich (D-N.M.), who has long counted them as allies.

Negotiators offered a potential olive branch with a manager’s amendment released Saturday that removed a provision defining what types of properties are of cultural importance to tribal groups under the National Historic Preservation Act. The effort to define those properties had angered tribal groups, who seek to make those determinations themselves.

“I’ve worked hard to incorporate the feedback we’ve heard from Tribes and New Mexicans into this Substitute Amendment, and I’m proud to join my colleagues in releasing it today," Heinrich said in a statement.

A bloc of tribal advocacy groups, called the 106 Strong Coalition, do not consider the changes sufficient. They have consistently called for the entire section to be removed from the bill.

“Any amendments to S. 5653 merely puts lipstick on a pig. This bill is rotten from the inside and there is no fixing the rot. Tribal sovereignty continues to be diminished in this bill," National Congress of American Indians President Mark Macarro told Native News Online after the manager's amendment was released.

It remains to be seen how many Democrats, particularly those representing Western states with large tribal populations, will be swayed by the changes. Reps. Melanie Stansbury of New Mexico and Adelita Grijalva of Arizona, who had already opposed the bill, said they "continue to stand in strong opposition" to the bill and its manager's amendment.

Some tribal groups have been more supportive of the permitting reform effort. The leader of the Coalition of Large Tribes, which has pushed for technical fixes to the bill but not opposed it outright, said in a statement it was “grateful to see many positive changes for tribes” but added there was “still room for improvement.”

Industry vs. environmentalists

Democrats will also have to decide whether to side with the clean energy industry, which has embraced the bill as a way to accelerate the energy transition, or environmental groups that argue the legislation goes too far in rolling back environmental protections.

The renewable energy industry has played — and will continue to play — an essential role in convincing Democrats to support the bill. Lawmakers across the party have backed increased wind and solar development, and industry groups argue the legislation would help accelerate that build-out.

Already, many House Democrats have strongly backed the bill because of its potential to advance clean energy projects.

"Labor is solidly with us, and the renewable industry is solidly with us," said Rep. Scott Peters (D-Calif.). "They really see this not just as good, but as a priority."

But following Jeffries’ criticism of the Senate deal, some environmental groups, like the Sierra Club and National Wildlife Federation, came out in forceful opposition to the legislation, citing fundamental concerns about its limits on judicial review and changes to the National Environmental Policy Act. They say they support permitting reform, but want Democrats to wait until next year when they have control of Congress and more "leverage" to get a better deal.

“Senate Democrats have been given a mandate to act decisively to deliver relief on energy bills and level the playing field for clean energy,” Loren Blackford, executive director of the Sierra Club, one of the nation’s oldest and largest environmental groups, said in a statement. “They can and must fight for a better deal.”

Evergreen Action, however, became one of the first green groups to endorse the legislation over the weekend, citing the bill's benefits to building clean energy projects.

It remains unclear which side Democrats will ultimately listen to. Some argue environmental groups have lost some of their political influence, but Jeffries appeared to echo some of their concerns by specifically citing NEPA and tribal sovereignty as shortcomings in the bill.

Meaghan McCabe, a spokesperson for Whitehouse, said before the manager’s amendment was released that negotiators hoped it "will address many of the concerns and priorities raised by House Democrats."

Energy and Commerce

If the bill passes the Senate, attention will quickly turn to Energy and Commerce Chair Brett Guthrie (R-Ky.), who has been conspicuously quiet about the package since its release.

The Kentucky Republican has officially commented on the bill only once, at a Punchbowl News event in early October, when he said his committee would "absolutely" like to see changes to the grid section of the Senate’s bipartisan permitting legislation.

In the previous Congress, bipartisan permitting legislation negotiated by then-Sen. Joe Manchin (I-W.Va.) and Sen. John Barrasso (R-Wyo.) failed to advance in the House. Disagreements over transmission policy were a key point of contention between the Senate and the House Energy and Commerce Committee, then led by Rep. Cathy McMorris Rodgers (R-Wash.).

It remains unclear whether the changes to the transmission title in the manager’s amendment will be enough to win over Guthrie and other committee Republicans, who have consistently argued that states, not the federal government, should have more control over where transmission lines are built.

And it's not just Republicans whose positions remain unclear. Energy and Commerce ranking member Frank Pallone (D-N.J.) has not commented on the package. He has been a staunch proponent of data center regulation, calling for a federal moratorium on the projects until Congress develops legislation to regulate them.

The permitting bill includes provisions intended to ensure ratepayers do not shoulder the energy costs of data centers. It is the bill with the most realistic chance of passage that includes significant provisions addressing the issue.

Trump and wind

Democrats will also be closely watching the Trump administration’s actions on renewable energy, as deep distrust lingers between them and a White House that has repeatedly thrown roadblocks in the way of clean energy development.

Democratic negotiators have consistently sought assurances outside the permitting deal that the Trump administration will approve wind and solar projects through the normal permitting process.

White House officials have released a steady stream of wind projects in recent weeks that had been held up in Defense Department reviews. Some of those approvals involved upgrades to existing wind projects, which Whitehouse called "a start, but we are going to need to see a lot more."

On Friday, however, the Trump administration advanced nine new large wind projects that have been the subject of ongoing litigation. The Democratic negotiators did not immediately respond to requests for comment on the move.

Rank-and-file Democrats have said the administration’s actions will be critical in determining their votes. But the favorable moves on onshore wind have not extended to offshore projects, with the Trump administration seeking to reopen a permit for the New England Wind project off Massachusetts.

"Offshore wind provides much-needed reliable clean energy — lowering electric bills while creating good-paying jobs. If the Trump administration is serious about permitting reform, they would stop trying to sabotage offshore wind projects, including in Maryland," Sen. Chris Van Hollen (D-Md.) said.

Some Democrats simply don't trust Trump.

"I cannot support a bill that relies on a handshake promise from the same administration that’s spent the last two years waging a war on new clean energy projects to hold up its end of the bargain, and continues to do so even after negotiating the reform proposal," Sen. Ron Wyden (D-Ore.) said in a statement to POLITICO on Friday. "Furthermore, I cannot support a deal that strips Oregonians and tribes of the most important tools they have to hold Trump and his cronies accountable."

Congressional inertia

The permitting reform bill could also be sunk by factors in Congress that have little to do with the legislation itself.

One major concern among supporters is whether House Republicans who lost their seats in the election will show up to vote.

Lawmakers who are leaving Congress may have little incentive to push through legislative wins during the lame-duck session. Some lobbyists refer to departing members as "free-range chickens." If enough members skip Washington altogether, their absences could complicate the legislative process.

Rep. Austin Scott (R-Ga.) told POLITICO that "attendance is an issue right now," potentially putting procedural steps in jeopardy.

"It happens every Congress post-election, lawmakers will not show up because they're angry and not motivated to do their job," said a former Senate Democratic aide.

Another concern is whether House Speaker Mike Johnson can secure enough support among Republicans to pass a rule setting up a vote. Rule votes have been a problem for Johnson even before the election.

Lobbyists have eyed a suspension-of-the-rules vote as a way to bypass that obstacle. But Jeffries’ opposition could mean Democrats would not provide the votes needed to reach the two-thirds majority required.