Don't believe it. Permitting Reform Bill has a chance.

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Maybe the one issue on which there is consensus in Washington is that federal permitting is dysfunctional, but lawmakers have struggled to agree on how to fix it. Miracle of miracles, a draft bipartisan permitting bill emerged in the Senate last week that—dare to hope—could pass in the lame duck session.

Permitting headaches may be America’s biggest economic Achilles’ heel. Under the National Environmental Policy Act, projects that receive federal funds or take place on federal land typically require lengthy environmental reviews, often with sign-offs from multiple agencies.

The feds take an average of four years to issue environmental impact statements that are hundreds of pages long and require developers to make special accommodations for species that might be disturbed by construction. Opponents then pore over the reviews and sue anyway, adding more years of delay, if courts don’t block projects entirely.

The Mountain Valley Pipeline took a decade to complete because a willful Fourth Circuit Court of Appeals panel kept striking down its environmental reviews. Even if projects survive this gauntlet, a new Administration may later pause approved projects or yank permits, as Joe Biden did for drilling in Alaska’s Arctic National Wildlife Refuge and Donald Trump has done for offshore wind.

Republicans have sought permitting reform for years, and Senate Democrats have finally come around as they realize their green-energy projects are also blocked. The deal isn’t perfect, but it’s probably the best that’s possible without a GOP filibuster-proof majority.

The bill imposes strict deadlines for agencies to complete environmental reviews—two years for bigger projects and one for smaller ones—and lets developers sue if their reviews are delayed. A federal judge would have the power to order an agency to take action on a permit application, and in some cases pay economic damages caused by the delay.

It would also curb litigation by requiring plaintiffs to challenge permits within 150 days of their publication—they now have six years—and to have suffered direct harm or face imminent injury.

A 150-day statute of limitations would apply to challenging so-called biological opinions, which review project impact on species and habitats. The bill would let federal agencies outsource some permitting work under the Endangered Species Act to states, which could expedite reviews.

If a judge faults an environmental review, agencies could correct the purported lapse rather than restart the permitting process. The bill also instructs courts to afford “substantial deference” to an agency on the “scope and contents” of an environmental review, which is intended to prevent judges from second-guessing agencies.

Importantly, repair and replacements of critical infrastructure, including transportation, water, grid and energy projects, would be exempt from NEPA reviews. So an environmental review wouldn’t be required to fix an aging bridge or to harden transmission lines. Projects that receive federal loans or minimal grants would also be exempt from NEPA.

The bill would generally prohibit federal agencies from rescinding or suspending permits and allow permit holders to sue for damages if they do. This might not stop willful regulators who want to stop a project approved by their predecessors, but at least developers would be compensated for losses.

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These reforms would help all industries, but fossil fuels stand to benefit most because permitting has been weaponized against them. In return, Senate Democrats demanded easier construction of interstate transmission lines to connect renewable energy to the grid. State utility commissions have often blocked lines.

The Federal Energy Regulatory Commission could override states and approve transmission lines in the “public interest,” as well as delegate eminent-domain power to developers. FERC can already do this for natural-gas pipelines, but extending the authority to transmission lines is more controversial.

A transmission line that transports, say, wind power to Mississippi from Iowa would help wind farms in Iowa. But Mississippians might get stuck paying for some of the cost even if they don’t need the power. So could pass-through states. The bill says customers receiving trivial benefits from new transmission lines shouldn’t be forced to bear the cost. That’s some protection for power customers, though the bill also gives FERC expansive authority to apportion transmission costs.

This is the price Democrats demanded for conceding to GOP priorities. Republicans may lose control of Congress in November, which will reduce their leverage. The country urgently needs permitting relief, and if this deal sticks, it’s worth passing.

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