Will Congress Pass Manchin’s Energy Permitting 'Side Deal'?

September 14, 2022

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President Joe Biden hands Sen. Joe Manchin the pen just used to sign the Inflation Reduction Act on Aug. 16, 2022. Image: Screenshot from C-SPAN stream.

Issue Backgrounder: Will Congress Pass Manchin’s Energy Permitting ‘Side Deal’?

By Joseph A. Davis

September will witness some serious legislative arm-wrestling over Sen. Joe Manchin’s (D-W.V.) energy permitting “side deal” to the climate bill passed by Congress Aug. 12 and signed by President Joe Biden Aug. 16.

The climate measure, rechristened the “Inflation Reduction Act,” was essentially a done deal when Manchin and Senate Majority Leader Chuck Schumer (D-N.Y.) shook hands in a joint announcement July 27.

Little noticed in the headlines were these words from the joint announcement: “Additionally, we have reached agreement with Biden and Speaker Nancy Pelosi to pass comprehensive permitting reform legislation before the end of this fiscal year.”


No bill has been introduced, explained, written about,

pondered in hearings, marked up in committee

or debated on the floor of either chamber.


Permitting reform legislation? Well, no bill has been introduced, explained, written about, pondered in hearings, marked up in committee or debated on the floor of either chamber.

We barely even have a text — there’s a draft with no one’s name on it, and a one-page outline on DocumentCloud, also with nobody’s name attached (although the web address mentions Manchin).

So we don’t know what exactly it is or who will vote for it. We don’t even know for sure that there will be a vote.

But we do know environmentalists oppose it. And we do know it will be a fracas.


To pass, political muscle is a must

There’s only one way the side deal can succeed: parliamentary legerdemain, namely attaching it to an omnibus continuing appropriations resolution that Congress must pass by Sept. 30 to keep the government running.

The likelihood of Congress passing all the 12 appropriations bills in full and final form by then is low. Instead, Congress will punt by passing a “continuing resolution,” or CR. Such a bill is a “must-pass,” because the Dems do not want to be blamed for shutting the government down five weeks before the midterm election.

Appropriations bills, technically, must originate in the House. So Manchin will need the cooperation of Appropriations Chair Rosa L. DeLauro (D-Conn.).

But attaching an energy-permitting side deal to the CR is not that simple — without very heavy political muscle. And oh yes, there is this silly rule that forbids legislating on an appropriations bill (well, it’s been more of a norm or a guideline lately).

In the end, those who have the votes set the rules.

Did we mention the permitting side deal has enemies? One of them could move to amend the CR by striking the side deal on the House floor (if it actually makes it into the CR). It is hardly certain who, if anyone, has the votes to do this.

One way to defeat that gambit would be to consider the CR under a rule that makes such a motion out of order. So Manchin will also need the cooperation of Rules Chairman James P. McGovern (D-Mass.).

Normally, the speaker can count on loyalty from those two leaders. But outlawing a vote on the permitting reform could cause chaos and resentment.


‘Gutting bedrock protections’

What other enemies does the side deal have? Well, for starters almost every environmental group and their local chapters in the country. They (653 of them) made their opposition known in an Aug. 24 letter to Schumer and Pelosi.

“This fossil fuel wish list,” they wrote, “is a cruel and direct attack on environmental justice communities and the climate. This legislation would truncate and hollow out the environmental review process, weaken Tribal consultations, and make it far harder for frontline communities to have their voices heard by gutting bedrock protections in the National Environmental Policy Act and Clean Water Act.”

The politics get more murky and Byzantine than even Backgrounder can explore here — but you can get a pretty good idea from an August 25 piece by Maxine Joselow, Theodoric Meyer and Vanessa Montalbano in the Washington Post.


What about the allegations that the

side deal was written by the American

Petroleum Institute? Nobody will talk.


What about the allegations that the side deal was written by the American Petroleum Institute? Nobody will talk.

If you are experiencing deja vu as you read the alleged side deal, you are not losing your mind. It resembles a Trump rollback of the landmark National Environmental Policy Act that Biden just reversed (may require subscription) and undid this year.

Still feeling deja vu? It also resembles a Trump axing of a Clean Water Act provision (Section 401) that allows states and tribes to veto permits for pipelines that cross a waterway. The Biden Environmental Protection Agency proposed reversing that rollback even after a federal court threw it out.


Counting votes

The arithmetic for all this is very cloudy. Appropriations bills can indeed pass the House by a simple majority. The House majority is very narrow: roughly 219 Dems, 211 GOPers and five vacancies.

Evidence suggests a vote on the side deal could split both parties. We do know that Pelosi is very good at counting votes. We also know that she would almost never hold a vote she expects to lose.

Chances of the side deal surviving may be even worse in the Senate — where you really need a 60-vote majority to pass an appropriations bill, and where a single senator can stop a bill by objecting.

A still-unknown variable in this equation is House Democrats. A letter opposing the side deal is being circulated by Raúl Grijalva (D-Ariz.), who chairs the House Natural Resources Committee, and is a progressive and environmental champion. The letter asks Pelosi not to attach the side deal to the CR. As of Sept. 9, 72 Democrats had signed it.

If Grijalva peels off enough votes, Pelosi no longer has a Dem majority. So unless GOPers vote with Pelosi, which seems unlikely, the deal would not pass. Stay tuned.

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

* From the weekly news magazine SEJournal Online, Vol. 7, No. 32. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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