During a House Natural Resources Committee hearing in July, Rep. Bruce Westerman (R-AR) asked Harvard Law Professor Andrew Mergen about the Biden administration's green energy subsidies.
00:00I want to thank the witnesses for being here today.
00:06You know, one thing I can assure you is that there is a need for permitting reform.
00:12There's a need because I hear it from people all over the country that come to my office
00:17that tell me their hardships and their stories about permitting.
00:23It's not just a Republican need. It's not just a House need.
00:27It's a bipartisan, bicameral need for permitting reform.
00:32And there's a lot of frustration, as we've heard today.
00:35And I like to go last in questions because it gives me a chance to listen
00:39and to hopefully kind of summarize things.
00:43But there's been a lot of fouls called today.
00:46And if this hearing had been a year ago with the Democratic administration,
00:49there would have been a lot of fouls called on this side of the aisle.
00:53Mr. Mergen, you're the legal expert here.
00:58So did the Biden administration, were they breaking the law
01:03when they kind of picked winners and losers on windmills and solar?
01:10And is the Trump administration breaking the law
01:14when they're picking winners and losers?
01:16And if they are, what's the remedy for that?
01:23That's a complicated question, right?
01:26But I will just say that my recommendation,
01:31and I think it's the only way that this works,
01:34based on a lot of experience litigating NEPA cases,
01:39is that any NEPA reform has to apply.
01:43It shouldn't pick winners or losers.
01:46Does the law allow you to do that?
01:49I suppose Congress could enact a law that says
01:52we're going to favor fossil or we're going to favor wind.
01:55Is that how the law is being used right now?
01:58I think that the administration, definitely, right,
02:01it seems undeniable that they have put a thumb on the scale
02:05against renewable energy.
02:07The previous administration put the thumb on the scale.
02:10And then we can probably look back at many administrations
02:14and see that the thumb has been on the scale.
02:17And the thing that I hear is we just want a fair process
02:21and a more streamlined process.
02:25The courts are weighing in on that now.
02:27We saw the court and the Supreme Court
02:30in several decisions recently that's telling Congress,
02:35you're supposed to make the laws.
02:37And that's telling the agencies that NEPA is a process.
02:42Those are things that I think hopefully everybody elected
02:45to Congress could agree on.
02:47That there is separation of powers.
02:49And we need to do our job.
02:51If we feel like different administrations use the law differently,
02:57then it's our responsibility to change it.
03:00Mr. Hergaard, I think you called me a nerd earlier, which I embraced that.
03:08And I know my wife sometimes calls me tree nerd
03:13because I've got a forestry degree.
03:15But before I was a forester, I'm an engineer.
03:18And I know we've got a couple of engineers here.
03:20And I've actually done permits before for projects.
03:27And they weren't even the NEPA process.
03:29But I can tell you they were extremely frustrating.
03:32And if you're going through these permitting processes,
03:35you look at the permit application and you think,
03:39you know, about 10% of this is actually useful and it's going to protect the environment.
03:44And the rest of it is checking the box.
03:48And a lot of times it costs a lot of money to check the box.
03:50And I'm not even talking about a NEPA with a process like this behind me.
03:56Just a simple clean air permit or clean water permit or water discharge permit.
04:01So I want to ask the engineers at the table.
04:07Is it possible to streamline permitting
04:10and still meet all the environmental objectives
04:14and maybe even exceed those objectives and build your project?
04:23Both of y'all.
04:24If you're an engineer, you can speak up.
04:26I'm an engineer.
04:27And I do think you can.
04:29In fact, there's no question in my mind you can.
04:32And I think we have to do that.
04:34And I thought your comment on putting your finger on the scale on either side
04:38is a real problem.
04:40We're starving for predictability in my industry.
04:43We're trying to make 35-year decisions.
04:45And we have four-year energy policy in our country.
04:49And that is really hurting all of us.
04:51We need something, and NEPA is a part of it, to give us predictability.
04:56Tell us what you want us to do.
04:58And then we'll live within that.
05:00But now it just changes back and forth.
05:02And that's why I believe and have promoted that every energy policy
05:07should be treated the same.
05:09We shouldn't favor one or favor the other.
05:11Let's just look at the environmental impacts on that.
05:14Thank you, Mr. Chairman.
05:15Mr. Bowles.
05:17Engineers like structure and consistency.
05:22And if you have a process that is fair and evaluates all things just like we
05:29would in any type of design or, as you say, answering the questions on a permit
05:35that we submit, I think that those objectives can be achieved through just a
05:42little bit more structure.
05:44I'm all for a little bit more structure and creativity in the way we accomplish
05:48our objectives here.
05:52I'm out of time.
05:54You're yielding me another minute, Mr. Peters.
05:56Well, I would also say that we could probably put 40 different people at the
06:04witness table and do this hearing all week long, nonstop.
06:10And we would hear how big of a deal NEPA really is and how the permitting
06:17process is.
06:18And my goal is that we create a process that actually works to protect the
06:25environment, that actually works with a blindfold on to allow people access to the
06:32process to get their projects permitted.
06:37And we've seen on both sides of the aisle.
06:42I mean, think about the CHIPS Act.
06:44This was a bipartisan bill.
06:47I didn't vote for it.
06:49It's still a bipartisan bill to build chip processing plants in the United States so we
06:53could compete globally with countries like China.
07:00just because of the federal nexus with money, these manufacturing plants on private land had to go
07:10through the NEPA process.
07:11Now, that doesn't seem like a really common sense thing to do.
07:17We also saw the IJA infrastructure bill put more money out there for infrastructure projects than it costs to build the entire
07:31interstate highway system in today's dollars.
07:33And what do we have to show for that?
07:37We got some things, but we could have had a lot more to show for that.
07:41So, the objective of this hearing, I think, has been met that we heard from frustration from both sides of the aisle.
07:50I appreciate the witness's testimony and I'm going to give each witness a minute to say anything else you think
08:00we need to hear that you might not have gotten asked in about four hours of sitting there.
08:05Let's start with Mr. Bowles.
08:09I'm not sure what else to add that we haven't covered because we've covered from A to Z and back again and back down again.
08:16So, I don't know, I just appreciate your time and the committee's time in inviting us here to discuss this.
08:25Mr. Campbell.
08:27For me, very briefly, I thought it's been rewarding to sit here and listen to the conversation today.
08:34Even though there's divisiveness, some people on one side, some are on the other.
08:38I felt that everybody wants to solve the problem, and this is a solvable problem, and it'll be good for all of the people in America.
08:46The people at the end of our lines will benefit from that.
08:50Mr. Mergen.
08:51I want to thank you for having me.
08:54I greatly appreciated hearing from the members and my fellow witnesses.
09:00And what I heard from them is that we need stability in this process, and I think that is undeniable.
09:06And I really strongly support a stable process, which we don't have right now.
09:11And I would just strongly counsel this very serious endeavor that you're undertaking to remember average Americans, the interests of all Americans and their ability to participate in this process in a meaningful way.
09:29We can talk about how complicated that process is or what's robust, but it seems really important when I worked in Wyoming that the people in Wyoming heard, were heard, right?
09:41The ranchers and the farmers.
09:42And it was also important that people who cared about Yellowstone or Grand Teton and the greater Yellowstone ecosystem had a voice.
09:50And so we need to focus on reforms that keep the public engaged.
09:56And I think the litigation problems are on the way to being solved.
10:00And I would just stress that as well.
10:02I would agree with you on having public input.
10:06I don't think we need to do away with that either.
10:09Mr. Hergott?
10:09I think, you know, I worked for the late Senator Inhofe for about 12 years, and his best friend was Bernie Sanders and Boxer.
10:20And although I stood behind him while I threw a snowball on the Senate floor, at the same time, he walked over and they cut deals on some of the largest infrastructure bills in the history of our country.
10:30Safety loot that had very low chance of making it over the finish line and were the model for IIJ and others.
10:35I think it's important, and to Mr. Pierce, to your question about offshore wind, I think it's extremely important that we eject the decisions about energy choices.
10:45And much like on cost allocation or FERC 1000 on transmission, there is the process that is the process that is the process.
10:52Then there is the business case for energy source and the situations there within.
10:57If we continue to allow that discussion and the overarching political discussion distract us from doing the bread and butter of what we know, which is getting to a decision in a reasonable amount of time with the right consultation and all of the things that are required.
11:11Because at the end of the day, in 2014, President Obama in the State of the Union, natural gas, I'll knock down the red tape and I'll build it on my own if I have to.
11:20He's talking about natural gas and four years later, we're talking about something else.
11:23And so the politics, I'm not naive enough to think the politics aren't going to change, and there's realities there within.
11:28But on this issue, if we can inoculate and go in a room and take the other stuff out, if you don't fix the process now, it was a shame that there was not one single piece of permitting in the IRA bill.
11:38All the money, none of the ability to get there, FRA, statutory changes, none of the ability to enforce it on the Senate, or at least from the congressional standpoint.
11:48The ability that we can complain all we want, but at the end of the day, the Congress hasn't legislated on permitting in a very long time.
11:55And when we leave it to other people, we have no one to complain about but ourselves.
11:58And confession is good for the soul after a long time in the Senate, writing press releases on permitting bills that I thought did things that didn't at all.
12:04And now that in the trenches, I earnestly think that if we can come together, we can fix some problems.
12:14And I would add to that that I like your idea of separating the permitting process from the business process.
12:25Let permitting be blind to the technology and the project, and let investors and the economy pick the winners and losers
12:34as to what should be built.
12:37I think we would all be better off if we could go down that road.
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