Is the Manchin Permitting Deal enough?

Mining companies in the US have been demanding a solution for their federal permitting woes for a long time. It remains to be seen whether the Manchin permitting deal will ease their concerns.

Is the Manchin Permitting Deal enough?

Federal permits, and how long it takes to obtain them, are perhaps one of the most stubborn problems faced by mining companies in the US. In theory, Washington seems inclined to address the industry’s woes – especially in light of President Joe Biden’s calls for a new US mineral supply chain for electric vehicles and solar panels. However, in practice the current administration has approved relatively few new mines and even slowed some projects.

It is in this context that the Manchin permitting deal, reportedly struck by Senate Majority Leader Chuck Schumer and House Speaker Nancy Pelosi, comes in. The deal derives its name from the fact that it was meant to secure West Virginia Sen. Joe Manchin’s vote in favor of the recently-passed Inflation Reduction Act. 

The provisions of the Manchin permitting deal are said to include measures to accelerate the permitting of energy-related projects in the US. An outline of the proposal sets one- to two-year mandatory timelines for completing environmental reviews under the National Environmental Policy Act.

The Manchin permitting deal would also require the President to designate and prioritize reviewing projects of “strategic national importance” – including energy-related projects such as fossil fuel infrastructure and mining projects. It would set a one-year deadline for issuing permits related to Clean Water Act compliance and a statute of limitations for legal challenges against permits.

Manchin Permitting – What Works & What Doesn’t?

The National Mining Association, a trade group representing coal and hardrock mining companies, saw the terms of Manchin Permitting as a step in the right direction. They were of the opinion that the proposal could help bolster investor certainty in the US as a future mining destination. 

Similarly, Karen Bennett, a partner and co-chair of the environmental and administrative law practice at Washington firm Lewis Brisbois Bisgaard & Smith LLP, opined that changes to water permitting along with a statute of limitations would definitely help mining projects.

On the flip side, legal experts who had reviewed the outline of the proposal found that Manchin Permitting didn’t offer enough to mining companies to be an out-and-out cause for celebration. “It would be misleading if we suggested that this is going to open up a lot of mines,” added Bennett.

As it turns out, the deal’s primary focus on shorter timelines for environmental reviews could actually end up causing problems for mine approvals. Tighter deadlines to complete reviews do not necessarily translate into the removal of bureaucratic obstacles that can cause construction delays. 

Arbitrary constraints on the environmental review process have also been known to create legal vulnerabilities for governmental analysis in the past. It would probably have been more productive to focus on substantive changes in terms of the factors that the government takes into account while granting permits.

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Manchin Mining Permits & the Environment – Irreconcilable Differences?

Part of why the Manchin Mining deal on faster permits is getting so much attention is the ongoing energy transition. As things stand, successful climate action can only be brought about through a vast expansion of mining. We simply cannot ignore the fact that even seemingly green technologies like renewables and electric vehicles are only possible because of minerals like lithium, cobalt, antimony, tungsten, copper, silver, and aluminium. 

Manufacturers in the US need these critically essential materials to forge a low-carbon future for the country and the world at large. However, these minerals cannot be acquired without having an impact on large swaths of land. Furthermore, mining operations need vast amounts of energy and have a significant carbon footprint. 

It is this dilemma which is at the heart of the ongoing energy transition – the government needs to balance the needs of the environment with those of businesses like mining. Critics of Manchin Mining permits have pointed out that the accelerated permit approval process would lead to more pollution from fossil fuel infrastructure like oil and gas projects. 

In essence, the fear is that Manchin mining would gut environmental protections, endanger public health, and sidestep community say. The nongovernmental organization Earthworks that advocates on behalf of people impacted by mining went so far as to claim in a recent blog post that the deal was “an attempt to stymie opportunities for communities to voice their opinion on projects that will directly impact them.”

According to John Holdren, a Research Professor at Harvard University’s Kennedy School who also served as the Director of the White House Office of Science and Technology Policy for President Barack Obama, “It is very hard to build the infrastructure of any kind in the United States.” Holden contends that there are genuine tensions between the desire of one set of people to build stuff and the desire of the public to have a voice. 

The unavoidable conundrum in this situation is the simple fact that delays in obtaining permits for energy projects in America can often be boiled down to different kinds of environmental protections. It is perhaps this dilemma which helps explain why Sen. Manchin was not allowed to include his favored permitting language in the Inflation Reduction Act itself. Both Schumer and Pelosi knew that they would probably fail to hold their caucuses together to get the larger bill passed with this language in it.

What this effectively means is that Sen. Manchin will have to gain the support of a large number of Republicans in both the House and Senate to get his stand-alone permitting bill passed. Time alone will tell whether he is able to succeed.

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