This op-ed was originally published by The Revelator. Reprinted under Creative Commons license CC BY-NC-SA 4.0.
Washington has a gift for cloaking unpopular ideas in appealing names. One recent example is the Bipartisan American Affordability and Jobs Act of 2026, or BAAJA, a sweeping “permitting reform” measure introduced this September by Sens. Shelley Moore Capito, Mike Lee, Sheldon Whitehouse, and Martin Heinrich. Once stripped of its deceptive branding, the bill is an out-and-out assault on the National Environmental Policy Act, the bedrock environmental law that has for more than 50 years required the federal government to look before it leaps.
NEPA’s genius is its modesty. As the Supreme Court has repeatedly noted, it’s a purely procedural statute. It dictates no outcomes but requires agencies to stop and think — to generate, consider, and disclose the potential environmental consequences of their actions before shovels hit the ground. Often called the “Magna Carta” of environmental law, NEPA has been emulated worldwide.
BAAJA keeps NEPA’s title while hollowing out nearly everything that makes it work: detailed review of environmental risks, rigorous analysis of available alternatives with less harmful effects, meaningful public input before agencies commit to harmful actions, and — most dangerously — the ability of courts to enforce any of it.
The bill has a minor positive or two; it would restore some of the authority of the Council on Environmental Quality that two courts in 2024 appeared to strip away, allowing the Council to standardize federal agencies’ NEPA procedures. The deal, however, is terribly lopsided and devalues NEPA’s essential purposes.
BAAJA dramatically expands NEPA’s “categorical exclusions,” removing scrutiny and shutting the public out of commenting on excluded projects. It expands the categories of proposals that aren’t “major Federal actions,” reducing agencies’ responsibility to prepare in-depth environmental impact statements. The newly excluded categories could cause significant harm, including projects such as electric transmission facilities, methane gas pipelines, and water resources and geothermal energy development programs.
When review does occur, the bill guts its substance. It instructs agencies to eliminate alternatives that don’t “meet the goals of an applicable non-Federal project sponsor.” The comparison of alternatives is the heart of an EIS, but the bill would let developers define that heart out of existence. The bill then freezes the science: Agencies could ignore research that becomes available after it publishes a project’s notice of intent to prepare a NEPA document.
The bill also imposes rigid deadlines that trace back to a report the Congressional Research Service thoroughly debunked. The real culprits delaying infrastructure projects are inadequate financing, local opposition, and under-resourced agencies. Arbitrary clocks will pressure agencies to cut corners, inviting project-slowing litigation while doing little or nothing to address the most important causes of delay.
Congress passed NEPA because development-minded agencies often treated environmental concerns as obstacles. This bill hands those agencies — and the developers they serve — the keys to making the go or no-go decisions. A project sponsor could force an agency to veto deadline extensions and dictate which alternatives get studied. This is the essence of agency capture, transforming a public safeguard into a private convenience.
The most alarming provisions concern courts. Building on the Supreme Court’s vilification of NEPA in its Seven County Infrastructure Coalition decision, BAAJA forces judges to give “substantial deference” to agency determinations in NEPA documents. This ignores an important impetus for NEPA’s adoption: the incentives of development-oriented agencies to sweep adverse effects under the rug if they threaten project implementation.
Even when a plaintiff wins, courts generally could not halt projects pending preparation of NEPA-compliant documents. By the time they’re completed, the projects may already have caused irreparable environmental harm. These measures go well beyond the already restrictive judicial limits in recent permitting legislation and the Seven County decision and remove agency incentives to conscientiously apply NEPA’s requirements.
The bill also penalizes agencies for protecting the public. If an agency suspends or revokes a permit, it would need to prove that doing so “is necessary to prevent specific, urgent, substantial, and proximate harm or damage to life, property, national security, or defense” — but not, perversely, to the environment!
A defeat for a NEPA plaintiff would enable private project proponents to recover a significant percentage of all project costs they incurred. Faced with that exposure, no rational agency would ever correct a mistaken approval. A law meant to improve decisions would instead make them irreversible.
It doesn’t have to be this way. Real reform would fund agencies properly, reserve any streamlined track for projects that genuinely benefit the environment, make mitigation binding and monitored, and preserve the public’s access to courts to redress statutory violations.
We should build clean energy and critical infrastructure faster, but not bulldoze the one law that makes sure we know what we’re building before it’s too late to change course. Before Congress votes on whether to “reform” NEPA — which is scheduled to happen immediately after the midterms — its members need to heed the statute’s original vision and look before they leap.
