The Senate should reject the use of budget reconciliation to enact major changes to energy policies.
The U.S. House of Representatives is attempting to use budget reconciliation—a process that allows legislation affecting revenue to pass the U.S. Senate with a simple majority vote— to accomplish what fossil fuel proponents could not achieve through regular legislation for years: amending the Natural Gas Act to diminish the role states and courts play in stewarding new interstate gas pipelines. The Senate should throw out proposed Gas Act amendments with the Byrd bathwater since the so-called Byrd rule prevents sweeping legislative changes “extraneous” to the budget through reconciliation just because a price is attached to them.
In 2017 and 2020, I testified before congressional committees on how the then-proposed Gas Act amendments were nothing more than collateral attacks on other laws: namely, the states’ reserved authority under the Clean Water Act (CWA) and the courts’ ability to safeguard private and public property rights from condemnation without verifying their public use. A reconciliation bill recently passed in the House—known as the “One Big Beautiful Bill Act”—uses this same approach, despite the Byrd rule’s legal restrictions that ensure reconciliation measures are primarily driven by budgetary goals.
These energy-related amendments in the bill violate the Byrd rule at every turn. Specifically, one provision of the bill includes several Gas Act amendments that conflict with existing legal standards and would upend the infrastructure certification process established by the U.S. Federal Energy Regulatory Commission (FERC). Interstate gas pipelines are expensive, long-lived assets that U.S. households pay for through their monthly energy bills, even when unused. Overbuilding creates stranded assets, making careful FERC oversight of any new approvals critical for consumer protection. The proposed bill’s huge legal and policy changes are incidental to any budgetary measure and clearly do not belong as part of the reconciliation process—unless paying to purchase a statutorily required approval now suffices.
The reconciliation measures offer fossil fuel infrastructure developers guaranteed FERC approvals—for a fee—and shield those approvals from judicial review. These provisions also tacitly squash traditional, statutorily preserved state authority provided by the CWA by purporting to require state approval. But the CWA guarantees the opposite, affirming that states hold the keys to protecting water quality and no federal “license or permit shall be granted if certification has been denied by the State.” The carefully crafted cooperative federalism set in place by the CWA, the Clean Air Act, and the Coastal Zone Management Act requires states to retain substantial freedom and their traditional authority as the primary guardians of state water and air quality under comprehensive and well-planned programs.
The proposed reconciliation measure also attempts to restrict the judiciary from enforcing the Fifth Amendment of the U.S. Constitution, which provides that private property rights can only be taken for a public use. The measure directs FERC itself to approve infrastructure projects on an expedited basis and restricts judicial review to only the applicant or those suffering irreparable economic harm—all in exchange for a developer’s up-front fee payment.
Besides sidestepping the Gas Act’s well-trodden legal standard commanding FERC to approve only projects required by the public convenience and necessity, the proposed measure violates courts’ ability to assess the constitutionality of government action. It shields “expedited” payment-secured FERC approvals from judicial challenges by landowners, including states, whose property is taken by private pipeline developers. This protection impinges on the courts’ ability to independently ensure that the private project serves a public use.
Presumably, landowners whose private property rights were condemned but who have been compensated would be hard-pressed to meet the new “irreparable economic harm” standard—the bill would lock the courthouse door on them. Surely, the judiciary’s right to ensure the constitutional sufficiency of a public-use determination cannot be sold to a private party. But this is precisely what this reconciliation measure purports to do.
The reconciliation bill also proposes to sell a U.S. Department of Energy “public interest” determination on gas exports for $1 million, to nations who do not hold negotiated free-trade agreements with the United States. The Gas Act currently deems exports to nations holding free-trade agreements to be in the public interest. There are myriad economic reasons that it is a bad idea to sell the public’s interest in U.S. fossil fuel resources. Moreover, there are reasons to question whether this short-sighted and meager addition to the public treasury bears anything more than an incidental relationship to the sweeping distillation of the Gas Act’s traditional, measured, and balanced public interest determination.
Reconciliation is a blunt instrument. It cannot be used for significant legislative amendments that are merely incidental to the proposed fees. The public interest should not be for sale. And the constitutionally protected separation of powers among the branches of our government must not be on the auction block either. The bill’s provisions allowing private payments in exchange for sweeping, non-budgetary legislative changes should be the first measures on the Senate’s chopping block.
