Momentum Builds For Meaningful Energy Permitting Reform

Interior Secretary Doug Burgum, addressing the need to streamline federal permitting processes during a ribbon-cutting event for a major expansion of Venture Global’s South Louisiana LNG export facility on March 6, told workers and executives assembled for the ceremonies that, “One of our pathways to energy dominance is just unleashing the incredible resources that we have in this country: getting the red tape, getting the federal government off the back of the worker, off the back of companies.”

Indeed, the need to find ways to expedite federal permitting processes and cut red tape has been a frequent refrain from officials in both major parties for years now, although making real progress in this arena has been hard to achieve. But momentum does appear to be building on specific issues impacting development in offshore waters of the U.S., where most federal permitting process are governed by Burgum’s Interior Department agencies.

The Marine MMPA Needs Modernization

It is no secret that the Endangered Species Act (ESA) and its’ abuse by activist groups is a major driver of delays and roadblocks in the federal permitting process. But another law which dovetails with the ESA, the Marine Mammals Protection Act (MMPA), potentially represents an even bigger, more intractable impediment to progress when it comes to developments of all types in federal offshore waters.

In testimony to a February hearing of the House Natural Resources Subcommittee on Water, Wildlife and Fisheries chaired by Wyoming Republican Harriett Hageman, Dustin Van Liew, vice president, global policy & government affairs for EnerGeo Alliance, urged members to exercise their oversight powers to create legislation to modernize requirements under both the MMPA and ESA to eliminate unnecessary red tape and resolve conflicts and duplicative processes between the two laws.

EnerGeo Alliance is a trade association representing the GeoScience industry which conducts most geological and seismic surveys for wind, oil and gas, and other industries seeking to mount offshore developments. In his testimony, Van Liew said that the primary problems related to the MMPA “stem from poorly written statutory language that creates (1) ambiguity and uncertainty in the application of the MMPA’s legal standards, and (2) procedural inefficiency.”

One such inefficiency stems from the fact that, though the MMPA has stronger species protection requirements than the EPA, developers still must seek permits under the ESA after the MMPA permit has been issued. Worse, developers cannot conduct permitting under both acts simultaneously – they must wait until the MMPA process is completed before the ESA process can get underway. Any perceived flaws in either process become fertile ground for litigation by opponents to development.

“Issues involving the overlap of the MMPA, the Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA) have proven difficult for the agencies, the courts, and the regulated community,” Van Liew says, adding, “In the past decade, these problems have manifested in routinely delayed permitting processes, inconsistent and misguided analyses of potential impacts, and opportunistic advocacy litigation intended to block or impede offshore development.”

It is the sort of regulatory abuse that leads many to question the good faith intent by the governing agencies. It is also the sort of counterproductive red tape that has led members of congress in both parties to take notice and seek solutions.

Congress Acts to Eliminate Needless Delays

In a rare sign of legislative progress in this area, Congress did take action over the past two weeks to reverse unnecessarily duplicative and burdensome regulations implemented during the Biden administration. On March 6, the House of Representatives voted to reverse a 2024 regulation by the Bureau of Ocean Energy Management (BOEM), using the Congressional Review Act.

The rule in question mandated time-consuming archeological surveys for all planned offshore developments even though past experience has shown such surveys to be entirely unneeded in the vast majority of cases.

In a release, the House Natural Resources Committee chaired by Arkansas Republican Bruce Westerman said, “[t]he rule was duplicative and unnecessary as the National Historic Preservation Act already provides a robust framework for a thorough review of offshore archeological resources. The ‘reason to believe’ standard, which existed prior to this rulemaking, offered a practical and balanced approach to safeguarding marine archaeological resources in the Gulf of America.”

The resolution under the Congressional Review Act attracted bipartisan support.

The Bottom Line

Attempting to streamline the myriad permitting processes of the federal government is a massive undertaking. Former West Virginia Democratic Senator Joe Manchin tried and failed multiple times over the past few years to pass comprehensive bills that would have addressed an array of needed revisions.

Those failures at a comprehensive approach have led some members of both houses to attack the problem in smaller bites, seeking to enact solutions on and issue-by-issue basis. The modernization and reform of the MMPA and its permitting requirements is one issue that would produce major benefits for the continued development of offshore energy resources.