US Interior unveils emergency permitting plans for energy, mining projects

The US Department of the Interior will implement alternative permitting procedures aimed at accelerating the pace of energy development on federal lands and waters, a move the agency said was necessary to respond to US President Donald Trump's declaration of an energy "emergency."

The new permitting timelines, announced April 24, would reduce the length of environmental assessments, which can take up to a year, to 14 days, DOI said. Projects requiring full environmental impact statements, which have typically required two years of preparation, could be reviewed and finalized within 28 days.

However, individual developers would need to apply to use the speedier procedures, which could carry a legal risk.

ClearView Energy Partners, in a note to clients, said "developers might still weigh the risks associated with this latest hurry-up approach on a project-by-project basis, at least until the permits approved under the emergency permitting procedure prevail in federal courts."

The plan will also speed up the Endangered Species Act consultation process. A DOI bureau would notify the Fish and Wildlife Service that it was using the emergency procedure and the service can decide whether to approve an action. After the "national energy emergency" is terminated or expires, FWS would evaluate information to provide either a biological opinion or letter of concurrence about the impacts on species.

"We are cutting through unnecessary delays to fast-track the development of American energy and critical minerals -- resources that are essential to our economy, our military readiness, and our global competitiveness," US Secretary of the Interior Doug Burgum said.

The sped-up rules would apply to oil and natural gas and related products, as well as biofuels, uranium, coal, geothermal, hydropower and critical minerals. The activities covered are those that "seek to identify, lease, develop, produce, transport, refine, or generate energy resources."

"As of now, the emergency procedures apply to projects in which Interior (or its Bureaus) is the lead agency," an Interior spokesperson confirmed to Platts, a division of S&P Global. The Federal Energy Regulatory Commission is the lead agency for siting of interstate natural gas pipelines and LNG export facilities.

In a document released alongside the announcement, DOI said its "alternative" National Environmental Policy Act process would designate a "responsible official," including Adam Suess, the acting assistant secretary for land and minerals management, who could take "urgently needed actions" to approve projects in accordance with Trump's Jan. 21 executive order declaring a national energy emergency.

For projects likely to have significant environmental impacts, the responsible official would still publish a notice of intent to prepare an environmental impact statement and announce a public meeting and a comment period. The DOI said it anticipated those comment periods to be "approximately" 10 days, while environmental impact statements would be prepared within 28 days of the notice to prepare.

The plan also included faster requirements for appeal under the National Historic Preservation Act, under which Indian tribes and Native Hawaiian organizations "that may attach religious and cultural significance to historic properties likely to be affected," would have just seven days to comment on proposed undertakings.

Legal uncertainty

The proposal drew quick criticism from environmental groups.

"The Interior's plan proves that Trump's fabricated energy emergency is a hoax designed to ram through new fracking and coal mining," Randi Spivak, public lands policy director at the Center for Biological Diversity said.

Brett Hartl, CBD's government affairs director, said his organization would challenge projects approved under the abridged reviews.

"If I were a developer, I would look on this very skeptically because it does to me seem extraordinarily legally vulnerable," Hartl said. For instance, the Administrative Procedure Act requires a 30-day comment period, he noted. The idea of starting and finishing an EIS in 28 days seems "literally impossible."

CBD officials said the Endangered Species Act regulation provides for emergency species consultations for time-sensitive, bona fide emergencies such as hurricanes or earthquakes rather than the type of open-ended emergency declared by the president.

For mining projects specifically, a 28-day review will "ultimately backfire," Aaron Mintzes, senior policy counsel at Earthworks, told S&P Global.

"Mining projects, by their nature, cause significant environmental and cultural impacts, especially to frontline communities and tribes," he said. "A 28-day review will inevitably miss something very important the public shared with DOI."

This could land the agency in court, Mintzes said, adding that it will likely result in delays that could have been avoided by listening to the public.

A 2020 report from the White House Council on Environmental Quality found the median time for federal agencies to complete environmental impact statements was 3.5 years. This is required as part of the National Environmental Policy Act.

Mintzes said this period is consistent with nations with large mining industries such as Canada, Australia, and Chile.

Megan Gibson, senior attorney with the Southern Environmental Law Center focused on energy policy, called the new approach "impossible to implement in a lawful manner."

The American Petroleum Institute, the US's largest oil and gas trade group, praised the idea.

"Our nation's permitting system is broken, and reform is essential to ensuring access to affordable, reliable energy ... We welcome the administration's focus on improving the permitting process, " Holly Hopkins, vice president of upstream policy, said.

The National Mining Association (NMA), a trade organization representing the U.S. mining industry, also supported the new permitting procedures.

The streamlined process will allow for better competition with China and feed supply chains with responsibly sourced materials, Rich Nolan, NMA's president and CEO, said in a statement.

"The status quo on U.S. permitting is a nonstarter and our cumbersome processes have been longstanding enablers of China's global mineral dominance," Nolan said. "The U.S. has the second longest timeline in the world to bring mines online—29 years—which has not only undercut American mining competitiveness but driven our alarming mineral import reliance."

ClearView suggested that projects best positioned to use the quick reviews could be those likely to result in a finding of no significant impact that can deploy quickly and are not located near members of environmental group with the legal standing to seek an injunction.

"Whether this approach is appropriate for larger projects with greater material, labor and capital needs and lead times appears far from certain," ClearView said.