3 days ago
Trump's moves to speed energy projects could slow them
Brandon Tuck got a lot of calls when President Donald Trump began his drive to 'unleash' American energy this year.
The Houston lawyer guides construction on big projects like pipelines. Clients rejoiced that 'the seas had parted' after Trump's barrage of executive orders and declaration of an energy emergency. But the waters, he would tell them, were still pretty treacherous.
'It's a trap for the unwary,' Tuck said in an interview. 'You might have your permit in six months if you use that emergency authority, but you might lose it in a year or two.'
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That emergency authority is one in a suite of tools Trump has offered to fossil fuel companies to get permits faster and, therefore, build faster. But Tuck and others like him are warning that those tools can't speed up projects as much as backers might hope.
In fact, Trump's moves could backfire, leaving projects tied up in court for years.
People who shepherd big energy projects say shortcutting reviews, firing bureaucrats and demolishing well-established processes is not the way to make such problems go away. Reviews done too quickly can invite errors that opponents seize on in court. Permit backlogs can grow when regulatory agencies are short-staffed. And blowing up longstanding practices can leave developers without landmarks to navigate.
The reality is that, for now, not much in the U.S. government has changed outside of Trump's executive branch.
Congress hasn't repealed the environmental laws that guide permitting and set the parameters for environmental analysis. Lawmakers are weighing changes to pipeline permitting and the National Environmental Policy Act in the Republicans' party-line 'megabill,' but weeks of legislative haggling remain, if not more. A Thursday ruling by the Supreme Court limited the scope of environmental reviews. But agencies will still be required to thoroughly examine the direct effects of energy projects.
For now, judges are mostly working with the same statutes and case law they've used for decades when they consider environmental challenges to major projects.
'I wish I could point to something that the federal administration has done to speed up permitting,' said Jennifer Jeffers, who guides projects for clients of the Allen Matkins law firm in San Francisco, in an email exchange. 'But so far most, if not all, of the administration's efforts on the environmental front have been to dismantle agencies and eliminate federal jurisdictional oversight.'
Even if it is intended to speed up permitting, she said, that dismantling and eliminating will likely lead to delays, uncertainty and increased costs for developers.
But some experts who work with the fossil fuel industry aren't worried about unintended consequences.
Jason Hill, a partner with the Holland & Knight law firm in Houston who served at the Interior Department in Trump's first term, says he doesn't expect the current administration to cut back on scientific analysis of projects. Instead, he said, it will light a fire under regulatory officials in Washington to make decisions.
That's what they did in Trump's first term, Hill said, to great effect.
'I haven't seen any indication from my interactions with the government that they're doing things any different or any less rigorous than they always have,' Hill said.
And even if they do complicate projects at first, Trump's actions will improve permitting in the long run, said Tom Pyle, president of the conservative Institute for Energy Research think tank. But that's not enough. To make permanent changes, he said, Congress needs to improve the process.
'It all points back to permitting,' he said.
The American Petroleum Institute, a major oil and gas trade association, offered similar sentiments, saying in an emailed statement that 'durable reform' is needed for the federal permitting system.
But it's far from clear what will reach Trump's desk. The Senate is still working on its version. It's not certain that the full Senate will agree to those provisions. Senators might not even be allowed to because, to avoid the Senate filibuster, all elements of the bill are expected to relate to budget matters.
Trump campaigned on a promise to drill more for oil and gas, though under former President Joe Biden, the United States produced more oil and gas than any country ever had. Hours after Trump was sworn in in January, he declared an 'energy emergency' designed to bulldoze barriers to energy production, transportation and export.
The reason for that 'emergency,' Trump said, was Biden — his administration's approach to energy and his push to reduce the effects of climate change. But Biden's administration had also claimed credit for getting environmental reviews done 23 percent faster than during Trump's first term.
Oil industry leaders scoff at the idea that Biden improved federal process for permitting big projects.
'We certainly know that all the efforts prior to President Trump have not fixed the problem,' said John Stoody, a vice president with the Liquid Energy Pipeline Association. 'So we appreciate whatever his administration can do to fix the broken permitting process.'
'Twist of irony'
Since Inauguration Day on Jan. 20, Trump and his appointees have cut a path of disruption through the conventional understanding of how energy and environmental policy works.
They revoked White House Council on Environmental Quality rules that have guided agencies and developers for decades. Then they directed permitting agencies to use their emergency powers to bypass environmental rules.
Tens of thousands of federal employees have departed because of Trump's campaign, led by billionaire Elon Musk, to shrink the size of the federal workforce through retirements, incentives and mass layoffs. Musk this week announced he'll soon end his work with the Department of Government Efficiency initiative he helped to launch and lead.
Among the high-profile moves to speed up projects: Interior Secretary Doug Burgum's plan to cut environmental reviews of fossil fuel and mining projects from years down to no more than a month.
Taken together, those policies are probably the biggest offensive against environmental regulations since the laws they implement were written in the 1960s and 1970s. But whether the moves will truly unleash energy projects is unclear because the onslaught has left risk and uncertainty in its wake.
'In a twist of irony,' Jeffers' firm said in an online post, Trump's revocation of NEPA regulations, 'could lead to greater delays in environmental reviews and permitting' for fossil fuel and mining projects, 'at least in the near term.'
Trump administration officials' push for agencies to use emergency authorities to speed projects will likely draw court challenges, Tuck said, because laws and regulations generally have very narrow criteria for what qualifies as an emergency.
'Our very consistent response is: 'Be wary of anything they offer to shortcut,'' said Tuck, a partner at Vinson & Elkins.
Brandon Tuck of Vinson & Elkins | Linkedin
Opponents of the Atlantic Coast and Mountain Valley gas pipelines accused agencies of taking such shortcuts to speed approval of the projects. They got a sympathetic ear from federal appeals court judges. Atlantic Coast got canceled after years of delays. The Mountain Valley gas pipeline finished more than five years late and billions of dollars over budget, and only after Congress and Biden rescued it.
Interior's plan to shrink the time for environmental assessments (EA) to 14 days and environmental impact statements to 28 days, was 'much more aggressive than anything I anticipated,' said Hill, the Interior Department veteran. He's watching for details.
'It's one thing to say you're going to do an EA in 14 days,' he said. 'It's another thing to say how you're going to do that, and I don't think that granular level of detail has been provided.'
Tuck said he expects the overhaul to change the order in which tasks are done, not make the process 10 times faster. Developers will need to spend more time and money before applying for an EA or environmental impact statement (EIS) to ensure they've provided everything regulatory agencies will need. Only after that can they expect such a quick decision.
'Nobody's writing an EIS in 28 days. That's fanciful,' Tuck said. 'What they're saying is, you give us all the information, all the analysis, and we'll review it and process it posthaste. But how long does it take clients to develop that information? Oh, you know, many, many months — a year, a year and a half, two years.'
The purges of Trump and Musk have been promoted as a way to save money. But energy experts say they could wind up costing project developers a lot of time. The aggressive approach Trump and Musk used to thin the ranks may also have hit the people who could move projects along.
When CEO Amy Andryszak of the Interstate Natural Gas Association of America presented a list of changes to laws that could speed interstate gas pipeline projects to a House subcommittee last month, she didn't mention Musk's chainsaw approach or the Trump administration's 'Reduction in Force' push. But she did add that 'adequate staffing and expertise across federal agencies' was also important.
'If we are going to build the infrastructure necessary to meet growing energy demand and the administration's goals of American energy dominance,' she said in a statement emailed to POLITICO's E&E News, 'we need agencies with the resources and personnel necessary to ensure the certification and development of the aforementioned infrastructure.'
Hill said he's confident the administration has been careful to keep the federal employees needed to keep the permits flowing.
But federal employees can do more than just process permits. Agencies can sometimes actively help move projects through the process. But they can't if they don't have enough staff.
As an example, Tuck said the Army Corps of Engineers has long done wetland delineations, for landowners, showing which parts of their property can be developed without Clean Water Act concerns. At one point, the agency was able to perform them even for those not seeking permits.
But even before Musk opened the throttle on his chainsaw, Tuck said, the Army Corps was cutting back. With the mass exodus from federal offices, he expects the agency will be able to do even fewer.
It's too early to know if Trump's plans will mean more energy projects get completed. But at least one big energy project has been slowed by the Trump administration itself.
Empire Wind 1, a New York wind energy project, was stalled by the Trump administration in April, though it had all its permits and construction had started. Trump recently relented and allowed work to resume. That has fueled speculation that, in return, Trump expects to get the Constitution natural gas pipeline built through New York. Democratic New York Gov. Kathy Hochul has said there is no such 'deal.' The developer of that project, Williams Cos., announced Thursday it is reviving the project and another pipeline planned for the Northeast.
The saga illustrates the danger to developers from shifting political priorities.
Such moves have happened in other administrations. One of Biden's first actions was to cancel the Keystone XL oil pipeline, which was designed to move Canadian oil into the United States. Former president Barack Obama put the Dakota Access pipeline on ice when protests heated up in North Dakota. The project was rescued by Trump and now moves oil from the Bakken play to the Midwest.
The irony of Empire Wind is that the reason the Trump administration gave for stopping it in the first place — 'rushed approval' and lack of 'significant analysis' — is exactly what critics say Trump is inviting for fossil fuel projects.
