Congress likely to get behind Trump Executive Orders on Energy and Energy Security

The Trump administration Executive Orders relating to the National Energy Emergency and Unleashing US Energy and Resources signed on Monday are, despite the hype, a further indication of US determination to address perceived weaknesses in its energy system and also its need to accelerate permitting processes around energy and raw material (including critical raw materials) development.

Towards the end of last legislative session in Congress, senator Joe Manchin (I-WV) made a last push for comprehensive permitting reform legislation — an objective he had relentlessly pursued since the Inflation Reduction Act was passed over two years ago. In July 2024, he introduced, along with Sen. John Barrasso (R-WY) as a cosponsor, the Energy Permitting Reform Act (S. 4753), was introduced with. The bill advanced out of committee very quickly - fewer than two weeks - in a bipartisan 15-4 vote reflecting its ability to garner support from both sides of the aisle and also reflecting the fact that permitting reform is a high-priority, bipartisan issue.

Many stakeholders already agree on the need for reform to achieve the energy transition, as the current patchwork of environmental review and permitting requirements have impeded progress on getting projects off the ground. The 118th Congress managed to amend the National Environmental Policy Act (NEPA) as part of the June 2023 debt ceiling deal — the Fiscal Responsibility Act (P.L. 118-5) — which set judicially enforceable time limits for NEPA reviews, clarified when NEPA applies to private projects that receive federal funding, and expanded agencies’ ability to employ categorical exclusions. So even before Trump´s Executive orders, Congress was already moving.

The Energy Permitting Reform Act (S. 4753)

Looking at the Senate bill introduced by Manchin and Barrasso introduced in the last session relative to the Trump administration orders addressing the same issues is also interesting. The bill includes many of the elements in the orders:

• Judicial Review: The bill would streamline judicial review processes by accelerating the deadline to file permitting challenges from the typical six years (or two years for FAST-41 projects) to only 150 days, requiring expedited review by courts, and imposing time limits on agency actions to address errors on remand. This proposal is less aggressive than other bills, like the recently released Rep. Bruce Westerman (R-AR) NEPA reform bill, which would impose heightened exhaustion requirements, restrict when agency authorizations can be vacated, modify the court’s standard of review, and narrow the available claims.
• Fuel Leasing on Federal Lands: The bill seeks to ensure oil, gas, and coal leasing are given equal priority to wind and solar leasing and eliminates the need for oil and gas federal drilling permits where state permits will also be needed (e.g., where the wellbore traverses, but is neither drilled nor produces, on federal lands).
• Renewable Energy Siting on Federal Lands: The bill includes numerous provisions to accelerate and expand renewable energy siting, including by increasing the frequency of geothermal and offshore wind leasing and DOI’s goal for renewable energy generation project permitting from 25 to 50 GWs; setting processing timelines for wind, solar, and geothermal project rights-of-way applications and for geothermal permit applications; and requiring the establishment of new categorical exclusions.
• Electric Grid: The bill also includes numerous provisions to accelerate and expand electric grid projects, including by requiring the establishment of new categorical exclusions for transmission and distribution projects, streamlining the federal backstop authority for permitting national interest transmission projects by eliminating the need for the Department of Energy to first designate national interest electric transmission corridors, and requiring development and continual updating of interregional transmission plans and reliability assessments.
• Mining: The bill amends the “mill site” provisions in the Mining Law of 1872 to provide greater flexibility for mineral development on federal lands — in response to a Ninth Circuit decision related to the Rosemont Copper Mine that upended the mining industry’s longstanding practice of using federal lands without locatable minerals for waste rock storage.
• LNG Exports: The bill requires the Federal Energy Regulatory Commission to grant or deny applications for liquefied natural gas (LNG) export and re-export authorizations within 90 days of issuing a final NEPA environmental review document; otherwise, applications are automatically approved.
• Hydroelectric Power: The bill allows for a four year extension of the time to commence construction of hydropower projects.

Given the “Republican Trifecta” now in place, it would not be surprising to see the Manchin and Barrasso bill resurrected as a substantive component of the implementation of the Trump administration´s plans to address the “energy emergency” and to provide a basis for wide ranging reform of permitting processes around energy and raw materials development.