The First Permitting Vote Is a Vote to Start

The Senate’s first vote on the bipartisan permitting bill is scheduled for today, Monday, November 9. Senators will be deciding whether to start debating the bill: cloture on the motion to proceed, with sixty votes required.¹

The vote to start is the real deadline. The text that matters is already written. A company that plans to fix its problem with a floor amendment has picked the most expensive way to change a bill, at the moment the Senate has the least time to spend on it.

The four sponsors are the chairs and ranking members of the two committees that wrote the bill: Senators Mike Lee and Martin Heinrich of Energy and Natural Resources, and Senators Shelley Moore Capito and Sheldon Whitehouse of Environment and Public Works. Their staffs asked developers to describe the project obstacles the bill should address. The 417-page text reaches the National Environmental Policy Act, the Endangered Species Act, and the Clean Water Act, along with judicial review and the revocation of permits already issued.²

The sponsors released their manager’s amendment on Saturday, November 7, and describe it as “clarifying, conforming, and technical edits.”³ Those edits reach the bill’s transmission planning, federal backstop siting, permit revocation, historic preservation, and data center provisions, and the amendment is the text senators will vote on.⁴ It was also the last version written in a staff office rather than on the floor. The sponsors said on November 4 that they would not wait for the new Congress.⁵

The law at the center of the bill is older than most of the staff drafting it. The Senate passed the National Environmental Policy Act without a dissenting vote in July 1969, and President Richard Nixon signed it on January 1, 1970.⁶ Congress wrote deadlines and page limits for its reviews into the statute in 2023, in the Fiscal Responsibility Act, the debt-limit law.⁷ That change rode on a bill that had to pass.

Getting to the floor takes time of its own. If cloture is invoked, the motion to proceed can take up to 30 hours of debate before a simple majority vote to adopt it.⁸ Only then does the Senate reach the bill and its amendments. Floor time is the Senate’s scarcest resource, and every amendment after today’s vote competes for it.

Sixty is the Senate’s number, not the finish line. The House passed its own permitting bill, the SPEED Act, and the two chambers must agree on identical text.⁹ House Minority Leader Hakeem Jeffries asked on Thursday for more input from his caucus on the Senate bill.¹⁰ Supporters hope at least 20 Senate Democrats will vote for it, a margin meant to carry momentum into the House. There, Energy and Commerce Chair Brett Guthrie has said his committee would like changes to the bill’s grid section.¹¹

The Senate has tested permitting on the floor before. On September 27, 2022, a permitting package rode on a stopgap funding bill. That afternoon its sponsor pulled it, as it became clear the combined bill lacked the votes to advance.¹² That evening the stopgap alone cleared cloture on the motion to proceed, 72 to 23.¹³ In December the package returned in modified form as an amendment to the annual defense authorization bill. The procedural vote was 47 to 47, short of sixty, with opposition from 37 Republicans and 10 Democrats.¹⁴

Two lessons carry over. The count comes before the vote: a sponsor who sees sixty slipping pulls the text rather than lose on the record. And a vote to start is a vote on the text senators expect to see. The 2022 package changed between September and December, and the second version still fell short.

I learned this as a House legislative director. The staff who hold the pen before a vote decide what the members debate after it, and today will be no different.

Ask your Washington team one question before the roll call. Has someone read Saturday’s text against the language your project needs? If the language is missing, the floor is what remains, and a change there needs floor time, an agreement to get a vote, and senators willing to spend both on it.

Today’s vote is a vote to start. For anyone who still needs a change, the roll call is the deadline.