But not without some lingering questions over federal power and agency deference
Four U.S. senators representing both sides of the aisle have come together on legislation they say will accelerate federal permitting for energy, infrastructure, and mineral development projects.
On September 30, Republican senators Mike Lee of Utah and Shelley Moore Capito of West Virginia, and Democratic senators Martin Heinrich of New Mexico and Sheldon Whitehouse of Rhode Island introduced the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA).
The senators argue that their bill would end the lengthy environmental reviews, regulatory uncertainty, and litigation that have become major obstacles to economic growth and affordable energy. Federal permitting processes that extend for years drive away investment, spike construction costs, and short-circuit projects needed to meet growing electricity demand, the lawmakers assert.
Among other things, the legislation would shorten environmental reviews, establish enforceable deadlines for federal permitting decisions, and protect previously approved projects against regulatory interference.
“We once built projects like the Hoover Dam, the Golden Gate Bridge, and the Empire State Building in years, not decades,” Lee said. “America still has the resources and the talent, but what too often stands in the way is a permitting system that takes too long and costs too much.”
The bill’s authors say the legislation would provide greater certainty that energy and infrastructure projects receiving federal approval will retain their permits in all but the most extraordinary circumstances, such as in cases of legal violations or court orders.
“For far too long, our broken and outdated federal environmental review and permitting processes have stood in the way of energy reliability, secure jobs, modern infrastructure, and economic growth,” Capito said. “The bipartisan reforms we secured in this deal will transform our nation’s ability to power our economy and fuel future growth, while continuing to protect the land, water, and wildlife we all cherish.”
The wide-ranging legislation would also require data centers to pay their associated transmission infrastructure costs rather than shift those expenses onto ratepayers.
A number of liberty-minded groups jumped immediately on the bandwagon of the bill. Pacific Legal Foundation (PLF), Americans for Prosperity (AFP), and the Club for Growth (CFG) all praised the legislation’s broad reach and its statutory provisions.
PLF, which litigates on behalf of property owners challenging government regulations, strongly endorsed the legislation.
“Americans should not have to navigate years of costly and unpredictable government processes simply to build a home, develop new energy resources, or create the infrastructure our communities need,” John Nagle, federal policy manager at PLF, said. “Reforming our permitting system is essential to removing unnecessary government barriers that delay projects, drive up costs, and discourage investment.”
Despite the bill’s robust streamlining features, not to mention its guardrails against ideological obstruction of the permitting process, a few provisions do raise questions about their potential effects on federal authority, state permitting powers, and judicial review.
One question is whether certain provisions could strengthen federal power over states and local communities when it comes to siting transmission lines. Another is codification of judicial “substantial deference” to executive agency technical expertise when evaluating certain environmental documents. While the provision does not restore broad Chevron-style deference in interpretations of the law, it does hand it over during environmental reviews as a way to shorten review times and forestall litigation delays.
The Act Itself
While the proposed bill has many features that align with and overlap the already House-passed SPEED Act, it is a separate and broader legislative proposal. The SPEED Act focused primarily on reforming the National Environmental Policy Act, or NEPA, which requires federal agencies to evaluate environmental consequences before approving certain projects.
But the Senate bill tracks far beyond that bill’s procedural reforms. For example, the legislation includes proposed modifications of the Endangered Species Act and a provision to expand state participation in federal environmental decision-making, as well as to step up county-level involvement in NEPA reviews and implement new rules governing interstate electricity transmission.
Among the most important provisions are extensive changes to NEPA. Existing law generally establishes one-year deadlines for environmental assessments and two-year deadlines for environmental impact statements. However, according to an October 2 analysis by the Bipartisan Policy Center, those deadlines do not necessarily require agencies to issue final permitting decisions within comparable periods.
“BAAJA would require the lead agency to issue a record of decision within 45 days of a published EIS and require outstanding federal authorizations to be decided within 90 days by agencies that participated in the review and 120 days by those that did not,” the policy center analysis stated. “The result is that finishing a review now starts a clock on the permits, rather than leaving a project to wait once the analysis is done.”
And while a sponsor can already ask a court to compel action on a missed deadline, and the court must order the agency to act within 90 days, BAAJA would shorten that process even more, the policy center observed.
“An agency could excuse a missed deadline only by proving one of six narrow causes by clear and convincing evidence, the court would have to rule within 120 days, and its order would require a decision within 60,” the analysis stated.
Beyond administrative deadlines, the bill tackles litigation timelines. For one thing, it would reduce the period for filing NEPA lawsuits from the existing six-year federal limitations period to 150 days after an authorization becomes public.
“Under the APA’s six-year default, a project can be challenged well after it is financed, permitted, built, and running,” the analysis stated. “BAAJA would cut that to 150 days for NEPA challenges. The clock runs from the date the authorization becomes public: in the Federal Register where an environmental impact statement was prepared, and on the agency’s website in all other cases.”
“The result of these changes would be that litigation risk is concentrated in the months after the issuance of a permit instead of continuing through construction and operation,” the center reported. “The ultimate goal is a judicial review system where legitimate challenges get due process, but the legal process fully concludes in an efficient, timely manner. The 150-day figure matches both the House-passed SPEED Act and the Energy Permitting Reform Act.”
Plaintiffs would also face additional standing requirements, including demonstrating direct harm and, when public comments were solicited, having raised the specific issue during the administrative review.
In a provision not all conservatives and property rights advocates might like, or at least would question, the bill would codify substantial judicial deference to agency decisions concerning the scope and contents of environmental reviews: “The effect should shorten both the duration and length of environmental documents: much of the length and delay in environmental documents comes from building a record to survive judicial second-guessing.”
That said, agency deference has had a long and torturous regulatory history, which conservatives have in the past accused the administrative state of using to expand its power and overstep jurisdictional lines, even on technical standards.
However, courts finding a NEPA violation would generally be required to return the matter to the agency for correction without vacating the permit or stopping the authorized project. The agency would have no more than 180 days to correct the deficiencies.
The Question of Alternative Routes
Another potentially important issue involves the scope of alternatives that federal agencies must consider during environmental reviews.
The Senate legislation would narrow the alternatives federal agencies must consider. Under the bill, the lead agency would be required to eliminate alternatives that fail to satisfy both the proposed project’s purpose and need and the non-federal project sponsor’s goals.
“Current law requires agencies to study a reasonable range of alternatives that are technically and economically feasible and that satisfy the projectʼs stated purpose and need, along with a no action alternative that assumes the project is not built,” the policy analysis stated. “BAAJA adds a second test: it writes the project sponsor’s own goals into the statement of purpose and need, and directs the lead agency to drop any alternative, other than no action, that fails either test. The lead agency would set the purpose and need and determine which alternatives are reasonable, and other participating agencies would be bound by both.”
That provision could have particular significance for private landowners affected by interstate transmission lines. The legislation does require federal regulators to consider landowner input during transmission permitting. However, coupled with shorter litigation deadlines, greater judicial deference to agency decisions, and restrictions on remedies for NEPA violations, the alternatives provision raises questions about whether affected landowners would have sufficient opportunities to challenge the location of federally approved transmission corridors.
Speaking of transmission line siting, the bill would expand federal authority over state permitting of interstate electricity transmission lines. Under existing law, the Federal Energy Regulatory Commission (FERC) has limited authority to approve certain transmission projects when state permitting processes fail to produce approvals. That federal backstop authority is tied to transmission corridors designated by the Department of Energy, a cumbersome process that has never resulted in FERC exercising the authority.
The Senate bill would eliminate the federal corridor designation requirement and make it easier for FERC to approve qualifying transmission projects when states lack siting authority or fail to approve a project within one year.
“FERC would be required to issue permits to lines of 230 kV or more when a state lacks siting authority or does not approve a line within a year, if the line is consistent with the public interest, protects or benefits consumers, improves reliability, or meets other criteria,” the policy center analysis states. “Transmission developers would have clear timelines and frameworks for their transmission projects, while regulators receive clear direction to evaluate the benefits and public interest impacts from a project.”
For lines of 345 kV or more, developers can apply to FERC and the state at the same time, though FERC cannot issue a permit until the one-year backstop conditions are met, the policy center reported. The bill would also make FERC the lead agency for environmental reviews of transmission projects it permits and streamline associated federal authorizations and litigation.
Supporters contend these changes would eliminate duplicative reviews and prevent individual states from indefinitely blocking infrastructure needed to move electricity across state lines.
However, the expanded federal backstop authority could reduce state control over transmission siting and make it easier for federally approved projects to proceed despite state-level opposition.
It would also establish rules allocating transmission costs according to the economic benefits received, the policy center stated.
“BAAJA simplifies this: customers pay in proportion to the core economic benefits they receive, such as improved reliability, less congestion, and access to cheaper power,” the policy center analysis states. “Customers who receive no benefit, or only trivial benefits, cannot be charged involuntarily. State-policy-related benefits, such as emissions reductions or meeting a specific state’s renewable portfolio standard, cannot be included in the cost allocation formula.”
Endangered Species Act Changes
The legislation proposes targeted reforms to the Endangered Species Act, though here the impact could be more limited.
The bill would establish a statutory definition of the best available scientific and commercial data, a standard that federal wildlife agencies are already required to use. It would also require federal agencies to consider certain scientific information submitted by states, potentially strengthening the position of state wildlife officials when their findings differ from federal assessments.
The standard period for formal ESA consultation would be reduced from 90 to 60 days, subject to specified extensions, and the legislation would more closely coordinate endangered species consultations with NEPA environmental reviews, the policy center stated.
Another provision would permit qualified states, under agreements with the federal government, to assume certain federal ESA consultation responsibilities for projects entirely within their borders. Applicants could still elect federal consultation, and participating states would remain bound by federal ESA requirements.
Legal challenges to biological opinions generally must be filed within 150 days, substantially shortening the period during which such decisions can be contested. For landowners who have experienced prolonged disputes with federal wildlife agencies, these changes could provide more timely decisions and additional opportunities to introduce state scientific evidence into the federal process.
However, it’s important to say that while the statute requires agencies to use the best available science, it nonetheless still gives agencies wide latitude to determine what science is credible and what is not. On the other hand, unlike in NEPA reviews, agencies are not afforded deference and there are no limits on remedies.
Consequently, the practical significance of the scientific reforms may depend on how courts interpret the new statutory language and whether it meaningfully changes agency decision-making.
The bill’s supporters see its reforms as necessary to overcome bureaucratic delays, improve energy reliability, lower costs, and encourage investment, while sustaining environmental protections and expanding opportunities for public participation.
