It’s official: the next Congress will be a divided one. While Democrats held their Senate majority, Republicans narrowly took control of the House of Representatives Some Republicans have already made clear they will investigate the Biden administration, even as Senate Republican Minority Leader Mitch McConnell has signaled there could be room for centrist policymaking “between the 40 yard lines.”
But Democrats still have control for another month, and there is critical business to get done in this lame duck Congress. The New Center identified four areas in particular that demand action now.
Prevent Another January 6th
Why it matters: Donald Trump’s baseless objections to the 2020 election, and the January 6th riots, demonstrated that current law is not clear enough to ensure a peaceful transfer of presidential power. The 135-year-old Electoral Count Act (ECA), which is supposed to govern the post-election period, has ambiguous language that then-President Trump used to claim (wrongly) that the Vice President and Congress could reject electoral vote slates from the states. It’s not clear that these schemes would have held up in court, but the mere threat was alarming enough to warrant reform.
State of play: Republican Senator Susan Collins proposed the Electoral Count Reform Act (ECRA) in July 2022. The bill has 15 other Republican co-sponsors including Mitch McConnell, and it has even more support among Democratic senators. The ECRA has not yet been voted on. In September, the House passed a similar bill— the Presidential Election Reform Act (PERA) — with the help of only nine Republicans.
Key provisions of the ECRA include:
- Specifying that the Vice President’s role is to simply count the electoral college votes as presented, not to accept or reject the validity of any state’s votes — as President Trump pressured Vice President Pence to do on January 6th, 2021
- Requiring 20% of both chambers to support an objection to the count in order for the objection to be heard and debated. Under current law, it takes only one senator and one representative to stop the counting process
- Requiring that states abide by the laws that they set before Election Day; states cannot change the rules because they are unhappy with the outcome
- Designating only one state official (the governor, unless the state legislature chooses a different official) to submit the election results to Congress. This should prevent the “fake electors” scheme of 2020, in which President Trump pressured states to submit multiple slates of results and allow Congress to decide which to accept.
The House’s PERA has some differences with the ECRA. For example, PERA would require one third of both chambers (instead of one fifth) to support an objection in order for the objection to be heard. PERA is also more specific about what qualifies as a “failed election,” in which a severe emergency prevents the election from fully occurring, and how states should respond by extending the voting period. The differences are not insignificant, but the House and Senate should be able to reach compromise.
Why now: The Senate’s ECRA already enjoys the support of a filibuster proof majority, and the House has passed its own bill. But with Republicans assuming control of the House in January, an Electoral Count reform likely wouldn’t even be able to come up for a vote before the 2024 presidential election. The time is now.
Stand Up To Russia and Stand With Ukraine
Why it matters: Ukrainian officials have made it clear that to sustain their war effort against Russia’s unlawful invasion, Ukraine requires economic aid in addition to military aid. Since the war broke out, the U.S. has been the largest supplier of weapons and financial aid to Ukraine, offering upwards of $65 billion in overall assistance this year. But Ukraine is still estimated to need $38 billion just in direct economic support in 2023. If the U.S. suspends or scales down its aid, European nations concerned with the regional energy crisis could follow suit. According to Taras Kachka, Ukraine’s Deputy Minister of Economic Development, “Without this financial support, our public finances would collapse. And it means that this is immediate victory for Russia.”
Beyond the moral imperative to support Ukrainians, Congress should also consider the global implications of a potential Ukrainian economic collapse. The Washington Post’s Josh Rogin explains it would “exacerbate the energy crisis, the food crisis, the refugee crisis and the global economic slowdown.” Extensive U.S. aid also signals to authoritarian leaders our high resolve on issues of democracy and territorial integrity. If it appears the U.S. is abandoning these principles, it risks emboldening dangerous leaders like Chinese President Xi Jinping and North Korea’s Kim Jong-Un.
State of play: Providing aid to Ukraine previously elicited significant bipartisan support, but recent polling, midterm campaign messages, and statements by some Republican members and leaders have signaled a growing partisan divide. In May, Congress approved a $40 billion military and humanitarian aid package, with just 57 House and 11 Senate Republicans in opposition. But now reports are surfacing that a growing number of Republicans are seeking to cut economic assistance. Others are also calling for increased federal oversight of funding and demanding more support from large NATO allies.
A November poll by the Wall Street Journal captured this shift among Republicans. While 81% of Democrats and 45% of Independents support sending additional financial aid to Ukraine, just 35% of Republicans agreed.
The Biden administration and Democratic leaders have sought to reassure Ukraine of their commitment amid a series of mixed messages in the media. With a Republican House next Congress, the White House is seeking to secure funding during the current lame duck session. On November 15, the White House requested $37.7 billion for Ukraine from Congress including $21.7 billion in military support and $14.5 billion in direct economic assistance and humanitarian aid. If this doesn’t get approved, Speaker Pelosi has indicated Democrats may try to include an aid package in the must-pass government funding bill.
Why now: Ongoing support for Ukraine funding isn’t guaranteed from House progressives either. In October, 30 House progressives signed a letter to President Biden urging him to “pair the military and economic support the United States has provided to Ukraine with a proactive diplomatic push” for a negotiated end to the conflict. While they later retracted the letter after backlash, if aid isn’t approved during the lame duck, House Republicans could band together with these progressives to block, delay, or add harmful contingencies to funding.
Raise the Debt Ceiling
Why it matters: The federal debt ceiling is a statutory cap on how much the U.S. Treasury is authorized to borrow to fund government operations. This may sound like it has something to do with enforcing fiscal responsibility, but extending the debt limit simply authorizes the Treasury to finance the deficit that Congress has already incurred — it does not represent new debt. In practice, the debt ceiling has become a partisan football that either party can use to shut down the federal government and/or ruin the country’s financial reputation. Threatening to not extend the debt ceiling is a tactic that both parties have used to force political concessions from the president, putting the country’s well-being at risk.
State of play: The debt ceiling was raised to $31.3 trillion in December 2021. As of this month, the Committee for a Responsible Federal Budget estimates that the ceiling will be reached around July 2023. Republican leaders have already indicated that they would be seeking reforms to Social Security and Medicare along with broader spending cuts during debt ceiling negotiations.
Treasury Secretary Janet Yellen recently urged Congress to raise the debt ceiling to a point where it wouldn’t be met until after the 2024 presidential election. In the past, Yellen has also supported ending the debt ceiling altogether — which would put the U.S. on par with most other developed nations. White House officials don’t believe they can convince the 10 Republican senators needed to support a bill to raise the ceiling during the lame duck. They will attempt to bypass Republicans and raise the ceiling through the budget reconciliation process, but only if they can convince Democratic holdout Joe Manchin.
Why now: By the time the debt ceiling needs to be raised again, Republicans will control the House. In 2011, a House Republican threat to not extend the ceiling caused Standard & Poor to downgrade the U.S. government’s credit rating for the first time, from a perfect AAA to AA+. It also sparked the stock market’s most volatile week since the 2008 recession. Today, with record inflation and an economy struggling to recover from the pandemic, Congress cannot keep playing games with America’s credit.
Follow Through on Energy Permitting Promises
Why it matters: America’s federal energy permitting process is highly inefficient, time consuming, and expensive. Processes for public input mandated by the 1970 National Environmental Protection Act (NEPA) and the lengthy litigation that often results means it is not unusual in the U.S. for a project’s permitting to take significantly longer than the time it takes to actually build the infrastructure. Today, the average environmental review process takes 4.5 years. Delays drive up a project’s financing costs, create prolonged inefficiencies, and signal a failure of government to provide necessary public goods.
If the Biden administration wants the renewable energy projects funded in the Inflation Reduction Act (IRA) to come to fruition sooner rather than later, Congress will have to agree on suitable energy permitting reforms. They are also needed to bolster U.S. energy and natural resource security at a time of immense global uncertainty.
State of play: This summer, Senate Majority Leader Chuck Schumer promised West Virginia Senator Joe Manchin a vote on permitting reform in exchange for Manchin’s vote on President Biden’s IRA. But when Manchin tried to include his Energy Independence and Security Act in October’s must-pass continuing resolution, bipartisan opposition that threatened a government shutdown forced him to back down and remove the provisions before the vote.
Republicans were resentful of the IRA’s passage and Democrats’ political maneuvering, but their subsequent support for West Virginia Republican Senator Shelley Moore Capito’s permitting reform bill (which hasn’t been voted on) indicates they want reforms. Progressive Democrats were wary of upsetting their environmentalist constituents and refused to greenlight the Mountain Valley Pipeline. But others from both sides of the aisle recognize the need for reform, particularly for advancing clean energy goals, and the potential for compromise.
Why now: Updating America’s aging infrastructure, ensuring the availability of reliable and affordable energy, and advancing our transition to cleaner fuel sources is far too important to be sidelined by political revenge tactics and optics concerns. If Democrats want to ensure clean energy is prioritized in permitting reforms and that NEPA’s core tenants are preserved, they should get this done before the next Congress.
Some of these issues, like permitting reforms, have a chance of passing in the next Congress, but likely with less bipartisan support than they could receive now. Others, like ECA reform, have almost no chance of passing a Republican House. Either way, time is running out in Washington. The 117th Congress should use the lame duck period as an opportunity to showcase bipartisanship at this time of high political tension.
Late last year, Democrats and Republicans in Congress came together to pass the Infrastructure Investment and Jobs Act, which was the biggest federal public works bill in six decades. And recently President Biden signed into law the Inflation Reduction Act (IRA), passed with only Democratic votes, that authorizes $370 billion in clean energy investment over the next decade.
Now comes the hard part. Can America actually build the roads, bridges, transit, power lines, solar arrays, and other infrastructure these bills authorize? Even if we are able to build, will these much-needed projects end up millions over cost and decades delayed?
Before agreeing to cast the deciding vote to pass the IRA, Democratic Senator Joe Manchin got Democratic House and Senate leadership to agree to hold a vote this fall on streamlining the federal permitting process. Earlier this month, Senate Majority Leader Chuck Schumer pledged to include permitting reform in a larger authorization bill Congress must pass this month to keep the government funded. On September 21, Manchin released the draft text of his permitting reform proposal and no one seems happy.
As The New York Times reported, “lawmakers in both parties are balking over a deal they insist they were never a part of, prompting a dispute that threatens to derail a government spending bill that must pass by next weekend to stave off a shutdown.”
Even before Manchin released his proposal, 72 House Democrats had expressed their opposition to including the permitting reforms in the funding bill in a letter to Speaker Nancy Pelosi and House Majority Leader Steny Hoyer, implying the move could risk a government shutdown. Republicans – resentful of the IRA’s passage and Democrats’ political maneuvering – are also not guaranteed to support such legislation. On September 12, West Virginia Republican Senator Shelley Moore Capito introduced her own permitting reform bill with 38 Senate Republican co-sponsors, but given this bill lacks any current Democratic support, this is a bill more designed to send a message than to become law.
It isn’t yet clear if a robust permitting reform measure can pass. But it is clear that it should. If it doesn’t, Americans could find many of these new infrastructure and energy projects tangled up in red tape for years.
It’s no secret America’s infrastructure planning and approval system is highly inefficient. Major projects in the U.S. rarely get completed on schedule and within budget. Consider California’s high-speed rail system approved by voters in 2008 to link Los Angeles and San Francisco. Initial estimates priced the project at $33 billion and estimated completion by 2020. Fast forward to today, the new estimate sits at $105 billion with a 2033 completion date. Beyond funding setbacks, the project has faced challenges including land acquisition, environmental litigation, permit delays, employee turnover, design adjustments, and political obstacles. In addition to disagreement among state leaders on how and where to allocate funding, in 2019 President Trump called the project a “green disaster” and revoked $929 million of its grant funding. This grant funding was subsequently restored by the Biden administration.
New York City’s East Side Access extension of the Long Island Rail Road faced similar delays. The project was supposed to be finished 11 years ago at a cost of $2.2 billion. Now it’s expected to cost $12 billion – or $3.5 billion per mile – when it’s finished this year. U.S. rail transit projects are estimated to cost 50% more per mile than in Europe and Canada (or 250% more when including New York), while construction on average takes 6 months to 1.5 years longer. By comparison, an underground Metro Line in Toulouse, France cost $176 million per mile.
There are many reasons why it’s hard to build things in America; a web of rules, regulations, and governing bodies – at the national and local level – are often redundant, sometimes contradict one another, and don’t include clear lines of authority. Processes for public input and lengthy litigation means it is not unusual in the U.S. for a project’s permitting to take significantly longer than the time it takes to actually build the infrastructure. The Permitting Institute, a nonprofit advocating for “removing red tape” in the infrastructure permitting process, crafted a flowchart detailing the types of considerations and barriers a solar power project may face in the permitting process (see below).
Source: The Permitting Institute
Most of the new infrastructure and clean energy projects recently authorized by Congress will be subject to intense regulatory scrutiny and environmental review under the National Environmental Protection Act (NEPA). The law requires federal agencies to coordinate to prepare an Environmental Impact Statement (EIS) and circulate a draft to relevant agencies, the public, and the Environmental Protection Agency. After a 45-60 day public comments period, a final EIS addressing any issues raised is published for a minimum 30 day review period. Finally, the lead agency, with final decision making authority, publishes a Record of Decision explaining their decision and identifying the alternatives considered.
NEPA: Background, Debate, & Reform Attempts
NEPA was enacted in 1970 after passing Congress with overwhelming bipartisan support. It was a landmark reform intended to promote informed government decision-making and create community safeguards by encouraging citizen involvement in the project review process, thereby increasing government transparency and accountability. NEPA’s enactment followed several high-profile environmental disasters in 1969, including a crude oil spill in the Santa Barbara Channel and the Cuyahoga River Fire caused by industrial pollution. The public was clamoring for higher environmental standards as the government undertook some of the most ambitious infrastructure projects in the nation’s history.
But as the size of the government has grown and our scientific understanding of environmental impacts advanced, so too have the demands of the environmental review process.
According to the nonprofit Common Good, when NEPA was created, government was smaller and less sprawling, and generally the review process could be completed within months or a year of the initial proposal. At the same time, environmental impact statements (EIS) were typically a few hundred pages. Fifty years later, the average review process takes 4.5 years and a typical EIS runs 661 pages. This level of scrutiny comes at a high cost – delays drive up a project’s financing costs, create prolonged inefficiencies, and signal a failure of government to provide necessary public goods. Not to mention the opportunity costs of wasted federal funds that could have flowed to other government programs.
NEPA’s public comments provisions have empowered local communities and organized interests to often block important and broadly popular infrastructure projects for almost any reason. A 2022 study by MIT professors that examined 53 utility-scale alternative energy projects that were either delayed or terminated between 2008 and 2021 found that the most common source of local opposition was concern about land value and the project’s impact on aesthetics, recreation, or other community uses (62%). This was followed by environmental impact (60%), health and safety (28%), unfair public participation processes (28%), failure to protect tribal rights (23%), challenges to project financing (21%), and intergovernmental disputes (21%). In 80% of cases, there were multiple sources of opposition at play. Further, the study found “no evidence that project developers found a way to work constructively with opposing groups,” indicating many paused or delayed projects fail to ever move forward.
Unfortunately, significantly reforming NEPA has been a red line for most Democrats. Many maintain that strict, broad NEPA provisions actually prevent litigation, reasoning that it’s better to have broad stakeholder buy-in before construction begins instead of having litigation hold it up after it has started. In the words of Brenda Mallory, the Council on Environmental Quality (CEQ) Chair appointed under President Biden, NEPA’s community safeguards “provide regulatory certainty, reduce conflict, and help ensure that projects get built right the first time.”
For their part, Republicans have been seeking ways to reform or, in some cases, radically overhaul NEPA for years. In 2020, 130 House Republicans signed a letter addressed to then-Chairman of the CEQ Mary B. Neumayr calling for NEPA modernization, claiming that NEPA has strayed from its original objectives, and stating: “Now, unending litigation and mountains of paperwork define a permitting process that stretches along an indefinite timeline.” One of the signers, Washington Representative Dan Newhouse, believes NEPA “exemplifies bureaucratic red tape,” and claims: “Our constituents cannot afford these delays when trying to renew, maintain, or develop critical infrastructure projects across the country.”
In the absence of any bipartisan agreement in Congress on how to reform federal infrastructure permitting, both President Trump and Biden have turned to executive action.
In 2017, President Trump issued an executive order creating the One Federal Decision policy and directing CEQ to propose updates to NEPA. Taking effect in 2020, the new rules put limits on NEPA reviews by imposing firm review timelines and page limits, and narrowing the scope of NEPA reviews to “reasonably foreseeable” impacts with a “close causal relationship to the proposed action.” President Trump and his supporters hailed the move as an action to fuel economic growth, create jobs, and remove red tape. Environmentalists and many Democratic officials said the revisions would eliminate key environmental safeguards and enable the building of more oil and gas infrastructure the U.S. should not be building on account of climate change.
On the day of his inauguration, President Biden issued an executive order initiating a review of Trump’s policy revisions, and he eventually rescinded Trump’s previous order and restored NEPA’s old provisions in April 2022. While the decision was endorsed by environmental groups, Chad Whiteman, the vice president for environment and regulatory affairs at the U.S. Chamber of Commerce’s Global Energy Institute, said it will “only serve to slow down building the infrastructure of the future,” including clean energy projects and public transit improvements.
What’s the Way Forward?
Executive orders are only guaranteed to last as long as the tenure of the president who signs them. That’s why Congress should seize the opening offered by this fall’s promised vote on federal permitting reforms.
The original intent of NEPA was sound: to create a more transparent and inclusive process to ensure infrastructure projects don’t have an unacceptable environmental impact. But NEPA now inflicts a harm of its own when much-needed, widely popular infrastructure projects are blocked by a small opposition. Rather than ensuring environmentally unsafe projects don’t get built, NEPA often allows few projects to get built at all, regardless of the benefits they would bring to a community or the environment.
To meaningfully reform permitting while maintaining transparency and safeguarding stakeholder participation, Congress should prioritize reforms that 1) reduce the endless litigation delays, and 2) create a system that prioritizes infrastructure projects based on clear criteria, encourages efficiency, and promotes accountability for all parties involved. Here are a few ways Congress could do it:
Reduce Litigation Delays
Expand FAST-41 litigation standards to all NEPA projects. Litigation, especially cases brought about by public interest groups, is one of the main reasons for NEPA delays. Under Title 41 of the Fixing America’s Surface Transportation Act (FAST-41), signed by President Obama in 2015, parties who file a legal challenge against a project are required to have previously submitted a related comment during the public comments period. This rule was developed to allow federal agencies to adequately study the specific concerns that might bring about litigation or delays later on during the initial environmental review. FAST-41 only applies to “covered projects” requiring investments of at least $200 million. Applying this aspect of FAST-41 to all NEPA projects could optimize the NEPA document preparation phase while limiting unexpected litigation.
Reduce the statute of limitations for court challenges. Currently, the statute of limitations for filing a court case against a NEPA project is 6 years and 2 years for FAST-41 projects (or 150 days for federal highway or public transportation projects). This is not consistent with other environmental statutes, which are typically just 60 to 120 days. Reducing the statute of limitations to 150 days, as Manchin recommends in his proposal, would encourage early active participation in the NEPA process, raising the bar for litigation quality and ensuring that legal challenges are brought forward early in a project’s development.
A Faster, More Efficient Review Process
Expedite permitting for clean infrastructure projects on public lands. As suggested by the Bipartisan Policy Center and based on Sec. 84401 of the Moving Forward Act introduced by House Democrats in the 116th Congress, Congress should expedite environmental reviews for clean energy infrastructure projects sited on public lands that have been pre-approved as “preferred locations” for renewable energy projects. These projects will be given highest priority for review and will rely on programmatic environmental impact statements to the maximum extent possible to expedite reviews while safeguarding environmental standards. Impacted states and counties would receive a portion of the project’s revenues, with additional revenues being directed to permit processing agencies.
Create a nonpartisan infrastructure oversight body. Philip K. Howard, founder of Common Good, proposes a National Infrastructure Board akin to Infrastructure Australia or Infrastructure Canada. He suggests: “Its responsibilities would be not to build infrastructure but to oversee and report on how infrastructure is built. Funding could still go through states, but only on condition that timelines and contracts meet standards and commercial reasonableness.” Such a board could:
- Set national infrastructure priorities and select high-priority infrastructure projects based on an unbiased cost-benefit analysis. In assembling an infrastructure priority list, the board would clearly lay out the problem or need a project is proposed to address, while evaluating it based on weighted criteria such as societal impact, deliverability, and “strategic fit” with larger government objectives like decarbonization potential, clean energy production, or reducing consumer costs. To streamline review of our most-needed infrastructure, projects designated as “high-priority” may be subject to expedited environmental review.
- Streamline permitting and public engagement by increasing agency coordination and clearly tracking a project’s progress. The board could assume responsibility for selecting the lead agency in charge of the NEPA review. By creating a mechanism to track a project throughout the permitting process, similar to the Permitting Dashboard for FAST-41 projects, the public can keep track of important deadlines for participation and monitor which agencies and authorizations are involved as well as the estimated completion timeline.
- Evaluate agencies’ efficiency and compliance through accountability scorecards. Modeled on the infrastructure permitting accountability scorecards for FAST-41 projects mandated under former President Trump’s executive order, the National Infrastructure Board could oversee the quarterly review of an agency’s performance. Scores could be determined based on data on an agency’s adherence to permitting deadlines, average permitting completion time, implementation status of any permitting reforms, and ability to cooperate with other agencies. Scorecards would allow the board to point to which agencies might be delaying the process and thoroughly examine the people, practices, or culture contributing to inefficiencies. Reinstating them will also reinforce agency accountability and increase transparency with the public.
- Annually audit projects to monitor project management and spending. The board can use a similar scorecard mechanism to evaluate specific projects by assessing criteria such as their progress towards completion, causes of delays, employee turnover rates, funding gaps, spending patterns and budgetary changes, management practices, design changes, and litigation challenges. Tracking this information will help policymakers and the public understand what kinds of challenges specific projects face and to identify and eliminate wasteful practices.
Infrastructure permitting inevitably requires lawmakers and agencies to weigh an array of tradeoffs. But five decades after Congress created the National Environmental Protection Act, the process has evolved to have a clear bias toward not building projects or at least making them much more costly with endless delays. Presidents Trump and Biden both tried to apply their permitting preferences through executive order, but it’s time for Congress to develop a permanent legislative solution that creates accountability and consistency as opposed to Washington rewriting the rulebook with each new administration.