Lame Duck Permitting ‘Reform’ Bill a Bad Deal

The so-called Bipartisan American Affordability and Jobs Act of 2026 (BAAJA, S. 5653) is the “four corners” permitting deal from Sens. Shelley Moore Capito, Mike Lee, Sheldon Whitehouse, and Martin Heinrich. They introduced it on September 30. It pairs real transmission and grid reforms, which the Natural Resources Defense Council rightly calls the bill’s principal strength, with a broad rewrite of the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and the National Historic Preservation Act.

The bill is bad substance, procedure, and strategy.

On the merits, the environmental law side is a serious rollback.

• The bill expands categorical exclusions and lets agencies stack them and borrow them from one another.
• It declares interstate gas pipelines not to be “major federal actions.”
• It requires agencies to drop any alternative that doesn’t meet the sponsor’s goals, and it frees agencies from considering science published after the notice of intent.
• On enforcement, it sets a 150-day statute of limitations, narrows standing to commenters who can show “direct harm,” and requires “substantial deference” to agencies.
• The only remedy for a NEPA violation is remand without vacatur or injunction, and the permit stays in effect during remand.
• Title IV’s “project certainty” regime would largely bar agencies from revoking or modifying issued permits, with no exception for newly discovered environmental harm.
• It also authorizes “disparate treatment” suits that could pay developers 50–100 percent of projected construction costs out of the Judgment Fund. As Member Scholar Justin Pidot notes, a single claim could exceed the roughly $40 billion paid on all Judgment Fund claims over the past decade.

The 494-page manager’s amendment released November 7 doesn’t change this picture.

• Earthjustice credits real fixes to Section 1402: a longer look-back period, a bad-faith requirement, and court-approved payouts. But it finds that the “forever permits” problem in Section 1401 remains.
• The amendment’s new catch-all exception for actions “taken pursuant to any applicable law” and its savings clause actually add ambiguity and invite litigation.
• The amendment also adds a new one-year deadline for a potentially huge range of federal decisions.
• It makes only minor technical changes to NEPA and no substantial improvements to the CWA or ESA provisions.
• Former EPA staff warn that, even as amended, Section 1401 could block Clean Air Act rules and enforcement against existing sources.

The process is as troubling as the substance.

• To be precise, BAAJA is not a reconciliation bill, and it does not evade the filibuster: today’s (November 9) 5:30 p.m. vote is a 60-vote cloture vote on the motion to proceed. What it skips is regular order. S. 5653 was referred to Energy and Natural Resources and then went nowhere.
• There has been no hearing, no markup, and no committee report, and therefore no legislative history to resolve the bill’s many ambiguities. The text instead rides on H.R. 2347, a House-passed bill about the tax treatment of sexual abuse damages. Nothing in it concerns energy or permitting.
• The sponsors have said they oppose substantive changes, and floor amendments will require unanimous consent.
• The substitute dropped over a weekend, so 575 Tribal Nations and the rest of us had about two days to absorb it before cloture. This matters more than form. A bill that would permanently restructure judicial review, Tribal consultation, and state water-quality authority is the kind of statute that most needs a record. And courts, not Congress, will end up deciding what this text means.

Strategically, this is the wrong fight at the wrong moment for Democrats.

• Last Tuesday, voters gave Democrats both chambers, reportedly with about 54 Senate seats and a large House majority. Since World War II, both chambers have flipped in the same midterm only three times before this. Those new members take office on January 3, 2027.
• Passing BAAJA in the lame duck would lock in rules written under a Republican majority and an administration that has stalled wind and solar while speeding fossil projects. The “first president to act wins” structure of Section 1401 would then constrain the next Democratic administration’s ability to undo that damage.
• Democrats would be spending their leverage on transmission reform, which they could pursue next Congress on far better terms. In return, they would give up permanent concessions on judicial review and core environmental statutes. They would also open a rift with more than 140 allied organizations and with Tribal Nations at the very moment those coalitions delivered. As the Defenders/Earthjustice coalition letter puts it, newly elected members “deserve to be a part of the process.”
• Waiting a few weeks costs little. Enacting this text could cost a decade.

If you find this as troubling as I do, please call or write to your senators today and urge a NO vote on S. 5653 / H.R. 2347 in the lame duck. The Senate’s official contact directory lists web forms, phone numbers, and mailing addresses for every senator. You can also reach any office through the Capitol Switchboard at (202) 224-3121.