Former White House Counsel C. Boyden Gray and Michael Buschbacher, counsel at Boyden Gray & Associates, published an editorial in The Wall Street Journal on August 7 urging West Virginia Senator Joe Manchin to continue his push to secure meaningful reforms to the National Environmental Policy Act, or NEPA. They write,

 “[W]e were heartened to see that Mr. Manchin secured a commitment to NEPA reform later this year. The initial list of efficiency-focused reforms is a good start, but it must be only that—a start. Without fundamental changes, activist litigation will continue to put a 100-pound thumb on the scale against the development of crucial energy infrastructure.”

Currently, NEPA’s capacious, judge-made right to sue allows activists who can make out even the barest “aesthetic injury” to bring a NEPA action in court. And agencies’ NEPA analyses must often account for environmental impacts only tenuously related—sometimes even those unrelated—to agency actions. Unless such problems are fixed, the editorial contends, American energy security—especially regarding electric-grid reliability—will be stuck:

“[A] reliable grid requires a substantial backbone of stable baseload power generation. Aggressive NEPA litigation has stymied this by preventing or delaying the construction of key-natural gas pipelines, leaving many regions without access to affordable and reliable electricity. Without more robust reliability protections, the Inflation Reduction Act’s subsidization of renewables will further weaken a grid that’s already too reliant on failure-prone sources such as wind and solar. 

While Manchin did not demand substantive permitting reforms before he voted for the Inflation Reduction Act, the editorial contends that his legacy—and our national welfare—depend upon fixing this most dysfunctional of federal environmental laws.

The full editorial, entitled Joe Manchin’s Legacy Now Depends on Permitting Reform, is available here.