Perspective: Permitting Reform – The Good, the Bad, and the Ugly

With proposed changes to the National Environmental Policy Act (NEPA), Clean Water Act, federal Endangered Species Act, and the National Historic Preservation Act (NHPA), the bill’s reach will touch nearly all federally funded or authorized infrastructure. Some provisions offer practical solutions to longstanding permitting challenges. Others threaten to undermine environmental protections without meaningfully improving project delivery. And still others simply eliminate the need for environmental review altogether. With any bipartisan legislation, there is necessary compromise, but I would argue that the compromises made to advance this bill create more bad policy than good and that we should consider whether additional discussion and amendments are possible to increase the good while reducing the bad. Right now, we do not have enough good to outweigh the bad and the ugly.

The Good

Although the majority of this essay will explore the more problematic portions of the BAAJA, it is worth reflecting on what works as I hope that these provisions make it through the amendment process and that we can pass permitting reform that moves the needle without unnecessarily weakening existing environmental protections or simply advancing bad policy.

Targeted Energy and Transmission Permitting Reforms Show Promise

The bill’s transmission provisions are arguably where Congress does some of its most important work. Expanding and modernizing the nation’s electric grid is essential to meeting growing energy demand, yet transmission development continues to face a fragmented system of planning, siting, and regulatory approvals. BAAJA takes meaningful steps to address these challenges by improving coordination between federal and state authorities, streamlining upgrades within existing rights-of-way, and reforming transmission planning and cost allocation. These are practical reforms aimed at real barriers to getting energy infrastructure built. Frankly, this is where Congress should concentrate its bipartisan efforts—addressing the specific challenges of building the infrastructure our economy needs rather than using energy development as justification for sweeping changes to our foundational environmental laws. (We will get to that complaint in later sections of this essay.)

Other energy-permitting provisions in the bill deserve attention as well. Although not all of the proposed reforms are worthy of the “good” label, there are several that make meaningful improvements to the process that should be carried forward. Specifically, language that assigns permitting timelines for certain rights-of-way authorizations related to renewable energy development and establishes or directs the establishment of categorical exclusions (CEs) for low-disturbance projects, including renewables and certain grid and storage activities. The title goes on to address geothermal and hydropower permitting in focused and logical ways. Other promising provisions in the bill that help to advance offshore wind planning and permitting should be applauded. More focus on strengthening the siting and permitting of these types of projects is needed. Provisions like these are common sense and support an all-of-the-above strategy for energy development that both parties say they support.

Another provision in this part of the bill that has not received much attention but that could be consequential is the expansion of the Federal Energy Regulatory Commission’s authority to use special compensation (or elevated pay structures) to ensure adequate professional staff to carry out the Federal Energy Regulatory Commission’s work. More reforms focused on staffing and retention would serve the permitting conversation better than eliminating requirements.

Some Positive Changes to NEPA for Accountability and Efficiency

Looking beyond the energy-specific provisions, there are some good elements of the NEPA reforms proposed. Although much of the NEPA reforms land in the “bad and ugly” bucket in this essay, it is worth highlighting the ones that work—specifically the reforms around establishing greater agency accountability to timelines.

Permitting reform has long sought greater timeliness in permitting decision-making and durability of those decisions. Too often, project timelines are extended due to a variety of factors, but those extensions, regardless of the cause, contribute to cost escalation and greater investment uncertainty. That is not an effective way to grow our economy. The BAAJA tackles this by instituting permitting timelines that mandate decisions on a statutorily defined schedule that establishes deadlines for coordination among agencies during the NEPA process as well as deadlines for permits and authorizations following completion of NEPA. That is a sensible approach to establish accountability to the federal permitting process.

Another potentially positive NEPA reform strengthens the role of the lead agency by giving it greater authority to establish the project’s purpose and need, aligned with the applicant’s goals, and define the range of alternatives that other federal agencies must consider. Establishing a “quarterback” for the process is sound project management and should lead to more disciplined reviews. However, Congress could tighten the language to clarify how the lead agency would direct the work of the other agencies. The bill does not explicitly transfer decision-making authority to the lead agency, so cooperating and participating agencies still have autonomy in making their decisions under their authorizing statutes. However, the language is a little ambiguous on how the range of alternatives set by the NEPA lead, for example, would work with the process to identify the least environmentally damaging practicable alternative under the U.S. Army Corps of Engineers’ Section 404(b)(1) requirements. Whether this is an implementation issue or a drafting issue, Congress should address that ambiguity rather than leave it to agencies to reconcile after enactment.

The language in the bill effectively codifying the Council on Environmental Quality’s (CEQ) Permitting Technology Action Plan is also a good policy. Codifying requirements to establish consistent data standards and structures to support efficient and effective information sharing is long overdue. Whether CEQ is the right home for this is a reasonable question (and other CEQ provisions wind up in the bad and ugly bucket below), but the contours of these provisions are on the right track and will advance good government and introduce technology in the statutorily defined permitting process. Permitting finally enters the 21st century.

Beyond NEPA, the bill also does serious work to increase permitting certainty with a dedicated title. One of the more consequential provisions would limit the ability of federal agencies to revoke, modify, or otherwise interfere with previously issued permits and authorizations, subject to certain exceptions. This is particularly important for capital-intensive infrastructure projects where developers make substantial financial commitments based on anticipated federal approvals, only to face the possibility that those decisions could be revisited by a subsequent administration. The bill also seeks to prevent agencies from systematically favoring or disfavoring certain types of energy projects. Our current struggle with advancing previously approved renewables is the prime example.

Regardless of the administration or the type of infrastructure being developed, permitting decisions should be based on applicable law and the merits of the project, not shifting political priorities. Establishing greater durability and consistency in federal permitting decisions is a worthwhile objective.

The bill also establishes a 1-year deadline for certain federal authorizations that do not require an environmental assessment or environmental impact statement (EIS), with judicial remedies when agencies fail to act. These deadlines reinforce a fundamental principle: federal agencies should be accountable for making timely decisions—that is good project management. There are legitimate questions about whether some of the proposed enforcement mechanisms go too far, particularly the substantial financial remedies available to project sponsors. But those concerns should not overshadow the value of establishing a permitting process that provides greater predictability, treats applicants fairly, and allows developers to rely on the decisions the federal government has already made.

The Bad and the Ugly

Now comes the difficult part. I originally intended to separate the bad from the ugly, but the more time I spent with this legislation, the harder it became to draw that distinction. Some provisions are bad policy. Others are downright ugly. And more than a few manage to be both. So, with apologies to Clint Eastwood, I am combining the categories.

Let’s start with the most problematic elements of the bill: narrowing the conditions under which a review under NEPA or the NHPA is required.

NEPA – Why Bother?

BAAJA builds on the revisions made to the definition of “major Federal action” in the Fiscal Responsibility Act of 2023 to further narrow the definition and limit the types of activities that trigger environmental review under NEPA. Notably, the revisions would exclude projects receiving federal grants, cost-share awards, or other financial assistance where the federal agency does not exercise “predominant control and responsibility” over the use of funds or environmental effects.

The implications of this seemingly simple change are enormous. Depending on the extent of federal involvement, it could exclude water infrastructure projects funded through the U.S. Environmental Protection Agency’s State Revolving Funds, most transportation projects funded through formula or discretionary grants, broadband projects funded through the National Telecommunications and Information Administration, port infrastructure, coastal resilience projects, and countless other federally assisted infrastructure investments.

Think about that: billions of federal dollars invested in building infrastructure across the United States could support projects that are no longer subject to environmental review under NEPA.

Public Involvement – Comment Early, Challenge Later (If You Can)

Equally troubling are the changes to public participation and judicial review. BAAJA would fundamentally restructure when the public has an opportunity to weigh in on a proposed project, while simultaneously restricting who can challenge the adequacy of the resulting environmental analysis.

Under Section 1106, agencies preparing an EIS would be required to publish a notice of intent (NOI) soliciting public comments on alternatives, environmental impacts, and relevant scientific studies or other information. The NOI must include a general description of the project’s location and available geospatial information. The public comment period would be limited to 45–60 days, with an extension to 75 days possible only with the agreement of the project sponsor.

Notably, the legislation does not require agencies to provide the public with an analysis of alternatives or environmental impacts at this stage. It simply requires agencies to solicit comments on those subjects.

This is an important distinction because BAAJA establishes a defined comment period at the NOI stage but does not require agencies to circulate a Draft EIS for public comment. Consequently, the only opportunity for public comment expressly required by NEPA would occur at the very beginning of the environmental review process, before the public has an opportunity to evaluate the agency’s analysis of alternatives and environmental impacts.

So, the public is being asked to provide substantive comments on alternatives and environmental impacts before the alternatives have been fully evaluated and before the environmental analysis is complete. That, in turn, creates another problem.

Under Section 1110, anyone seeking to challenge the adequacy of the NEPA review would generally need to demonstrate that they submitted a sufficiently detailed substantive comment during an available public comment period identifying the specific issue they intend to challenge. They would also need to demonstrate direct harm from the agency’s decision.

Think about the implications. A community could raise concerns about a proposed highway, transmission line, or industrial facility during the initial scoping period, only to discover later that the completed environmental analysis overlooked an important impact or relied on questionable assumptions. But if that community did not identify the issue with sufficient specificity during the initial comment period, it could be barred from challenging the agency’s analysis in court.

BAAJA adds another wrinkle: agencies would not be required to consider new scientific or technical research that becomes publicly available after the NOI is published. That means important information emerging during the environmental review process could potentially be disregarded, even when it would materially change our understanding of a project’s environmental consequences.

Taking them together, these provisions turn the concept of meaningful public involvement on its head. The legislation appears to assume either that agencies will conduct substantial environmental analysis before formally initiating the EIS process or that public involvement is primarily useful for identifying issues at the outset, rather than evaluating the adequacy of the analysis once it has been completed.

Neither assumption is particularly reassuring. What makes this especially difficult to reconcile is BAAJA’s own characterization of NEPA as a statute requiring federal agencies to consider and inform the public about the reasonably foreseeable environmental effects of major federal actions.

How meaningful is that information-sharing obligation if the public is asked to comment before the analysis is complete, may not have another opportunity to evaluate the results, and could lose the ability to challenge an inadequate review because it failed to anticipate a problem at the outset?

That is not meaningful public involvement. It is a procedural exercise.

If NEPA no longer applies to large swaths of federally funded projects, the public has fewer meaningful opportunities to engage and courts have less authority to remedy violations, it is fair to ask, “why bother?”

NHPA – Does This Still Count as Historic Preservation?

If BAAJA’s changes to NEPA seem aggressive, its proposed revisions to NHPA follow a remarkably similar playbook. Narrow the federal actions subject to review, limit the effects agencies must consider, constrain public and Tribal participation, and restrict the ability to challenge decisions in court. The cumulative effect could fundamentally change how the federal government considers the impacts of infrastructure development on historic and culturally significant resources.

Like NEPA, NHPA establishes a process rather than a particular outcome. Section 106 requires federal agencies to consider how their decisions may affect historic properties and provide the Advisory Council on Historic Preservation with an opportunity to comment. The process also provides an important role for State Historic Preservation Officers and Tribal Historic Preservation Officers, Tribal governments, and other consulting parties in identifying historic properties and resolving adverse effects. Section 106 does not prohibit a project from affecting historic properties. It requires agencies to identify those effects and consider ways to avoid, minimize, or mitigate them before making a decision.

BAAJA would substantially change that process, starting with what constitutes a federal undertaking. Under current law, Section 106 generally applies to projects requiring federal permits or approvals or receiving federal financial assistance. BAAJA would exclude projects where the only federal involvement is a grant, loan, loan guarantee, or other financial assistance not primarily intended for historic preservation. It would also require substantial federal control and responsibility for projects involving federal permits or approvals.

Sound familiar? The same infrastructure projects potentially excluded from NEPA through the revised definition of major federal action could also be excluded from Section 106. That includes federally assisted transportation, water infrastructure, broadband, housing, and other development projects. Unlike the proposed NEPA exclusion, the NHPA financial assistance exclusion does not even require an assessment of whether the federal agency exercises predominant control over the use of those funds. A federally funded highway or water infrastructure project could potentially affect archaeological resources, historic buildings, or places of cultural significance without triggering either NEPA review or Section 106 consultation, provided no other federal involvement independently triggers those requirements.

But BAAJA does not stop at narrowing applicability. It also changes what agencies must consider when Section 106 does apply. The legislation would narrow the definition of adverse effects, generally focusing on reasonably foreseeable consequences that directly alter the characteristics of a historic property. Visual, atmospheric, and audible effects would largely be excluded unless they directly and significantly diminish the characteristics that make the property eligible for historic designation. Similarly, the area of potential effects (APE) would be narrowed to exclude portions of projects outside federal control or responsibility, potentially limiting consideration of impacts beyond the federally authorized portion of a project.

Consider a new transmission line crossing a culturally significant landscape. The project might not physically disturb a historic site, but towers and transmission lines could fundamentally alter the setting and character of the landscape. Under BAAJA, those effects could receive considerably less consideration, even when the setting itself contributes to the property’s historic significance. Again, we are not simply making the review process more efficient. We are changing which resources and impacts receive consideration in the first place.

Tribal Consultation – Participation at the Agency’s Discretion

Perhaps the most troubling changes involve Tribal consultation. Section 106 provides an important mechanism for recognizing Tribal knowledge and identifying places of religious and cultural significance that might otherwise be overlooked during project development. Those places are not necessarily marked by buildings, archaeological artifacts, or other physical evidence. Their significance may be rooted in traditional practices, cultural relationships, or the history of a particular landscape.

BAAJA would narrow the statutory definition of properties of traditional religious or cultural importance and give federal agencies greater discretion in identifying those resources. More consequentially, the legislation states that agencies may consult with Tribes, Tribal Historic Preservation Officers, and other consulting parties when establishing the APE and identifying historic properties. Although agencies would still be required to request and consider certain information, the change would reduce their obligation to engage in meaningful dialogue during the initial identification process.

This is an important distinction. Tribal consultation is not simply another opportunity for public comment. It recognizes the sovereign status of Tribal nations and their unique relationship with the federal government, particularly regarding ancestral lands, cultural resources, and places of traditional religious importance. Making meaningful consultation more discretionary diminishes that relationship and risks overlooking resources that federal agencies may not otherwise know exist.

The legislation would also impose strict consultation deadlines. Consulting parties would generally have 30 days to provide requested information or substantive objections to agency findings. Failure to respond within that timeframe could allow agencies to proceed without reconsidering earlier determinations. For Tribal governments and preservation offices already facing significant staffing and resource constraints, those deadlines could make meaningful participation considerably more difficult.

The bill would also require the Department of the Interior to evaluate state and Tribal historic preservation programs every 2 years, including their compliance with consultation deadlines. Failure to satisfy those requirements could result in suspension of federal funding or the federal government assuming responsibilities normally carried out by state or Tribal preservation officers. In other words, Congress would impose new procedural demands on Tribal preservation programs while potentially penalizing them for lacking the capacity to meet those demands. It is a self-fulfilling funding prophecy that, if enforced, could compound existing problems rather than provide solutions.

Agency Discretion – Consultation Without Consensus

BAAJA would also change how agencies resolve adverse effects. The existing Section 106 process emphasizes consultation and the development of agreements identifying measures to avoid, minimize, or mitigate impacts on historic properties. Although agencies ultimately retain decision-making authority, the process creates a structured opportunity for consulting parties to influence those decisions.

Under BAAJA, an agency could determine that its obligations have been satisfied because adverse effects would not render a historic property ineligible for the National Register of Historic Places. Alternatively, the agency could determine, in its sole discretion and as otherwise allowed by law, that other considerations outweigh historic preservation. This is a significant departure from the existing consultation framework. A project could substantially affect a historic resource without destroying the characteristics that qualify it for historic designation, yet the agency could conclude that its Section 106 obligations have been satisfied.

The legislation would also restrict mitigation measures to the APE unless the applicant requests otherwise, potentially limiting opportunities for creative mitigation solutions. And, much like the proposed NEPA amendments, BAAJA would constrain judicial review by establishing a 150-day filing deadline, additional requirements to demonstrate direct harm and preserve issues for litigation, and limitations on courts’ ability to vacate approvals or issue injunctions based solely on NHPA violations. Taken together, these provisions would give agencies greater discretion while limiting the ability of consulting parties and the courts to question how that discretion is exercised.

The Bigger Picture

There’s certainly room to improve the Section 106 process. Consultation can be lengthy, and greater predictability, better coordination, and more consistent use of programmatic agreements could benefit agencies, project sponsors, and consulting parties alike. But those improvements should not come at the expense of the resources and relationships the statute was designed to protect.

If federally assisted projects no longer qualify as undertakings, agencies can disregard certain effects on historic properties, Tribal participation becomes more constrained, and courts have less authority to remedy violations, what remains of the underlying commitment to historic preservation?

Congress never intended for the NHPA to prevent infrastructure development. It was intended to ensure that the nation’s historic and cultural resources receive meaningful consideration before decisions are made that could permanently alter or destroy them. BAAJA risks turning that obligation into little more than an administrative determination made by the very agency proposing to authorize the project.

Permitting Reform: Omissions, Duplications, and a Head-Scratcher

Although the erosion of our foundational environmental statutes is troubling enough, the drafting choices that ignore existing permitting support structures and comparable programs under the jurisdiction of committees not involved in the original negotiations is equally troubling. These critiques may seem technical and nuanced to the legislative process, but the drafting choices have produced bad policy and warrant analysis and discussion.

Permitting Council and CEQ – Who’s on First?

One particularly concerning portion of BAAJA focuses on improving federal permitting but makes no mention of the Federal Permitting Improvement Steering Council (Permitting Council). Instead, it creates a structure within CEQ that duplicates many of the functions Congress has already assigned to the Permitting Council. The reasons for this drafting choice could be varied, but regardless of the cause, it is bad policy.

First, some background. Established under Title 41 of the Fixing America’s Surface Transportation Act of 2015 (FAST-41), the Permitting Council is a small federal agency tasked with improving the transparency, predictability, and accountability of federal infrastructure permitting. I helped establish the Permitting Council during the Obama Administration and later had the privilege of serving as its Executive Director, so I am particularly familiar with both its capabilities and its limitations.

The Permitting Council is chaired by an Executive Director and includes the Chair of CEQ, the Director of the Office of Management and Budget, and Deputy Secretary-level representatives from 13 federal agencies involved in infrastructure planning and permitting. It oversees the Federal Permitting Dashboard, which provides public permitting schedules and tracks progress for projects receiving FAST-41 coverage.

But the Permitting Council does much more than maintain a dashboard. Projects receiving FAST-41 coverage benefit from a dedicated infrastructure project advisor who serves as a primary point of contact for the sponsor, facilitates interagency coordination, and helps troubleshoot problems before they become intractable. These advisors are experienced federal professionals who understand how the permitting bureaucracy works and, importantly, how to navigate it.

The Permitting Council also brings senior agency leadership directly into the process. Having Deputy Secretaries—effectively the chief operating officers of their respective agencies—engaged in resolving difficult interagency disputes is an invaluable tool when issues cannot be resolved at the staff level.

Additionally, the Executive Director administers the Environmental Review Improvement Fund, which supports investments in agency and Tribal capacity, staffing, technology, and other measures intended to improve federal permitting performance.

These are tangible benefits that go well beyond establishing deadlines.

Since Congress created the Permitting Council more than a decade ago, the agency has received continued bipartisan support. Congress has recognized its value and considered ways to expand its reach. In fact, in July of this year, I testified before Congress in support of bipartisan legislation that would have expanded FAST-41 eligibility so more infrastructure projects could benefit from the program.

All of this makes BAAJA’s approach even more perplexing. The bill’s Federal Permitting Improvement subtitle recreates several elements of FAST-41 but places responsibility with CEQ. It establishes definitions for terms such as “authorization” and “transparency project,” creates a new Environmental Review and Permitting Tracker to be maintained by CEQ in coordination with the General Services Administration, and establishes a Permitting Improvement Fund administered by CEQ to support agency staffing, professional development, project management, and other activities intended to improve permitting efficiency.

Notice the similarities?

Congress has already established a permitting dashboard, a federal institution responsible for coordinating complex infrastructure reviews, and a dedicated fund to improve federal permitting capacity. Yet BAAJA creates parallel mechanisms without explaining how they will interact with the existing framework. This is where duplication and overlap become problematic.

BAAJA would extend permitting deadlines and coordination requirements to a broader universe of federal actions, potentially reducing some of the unique benefits that previously encouraged sponsors to seek FAST-41 coverage. However, it does not replicate some of the Permitting Council’s most valuable features: dedicated infrastructure project advisors, senior-level interagency oversight, and an established mechanism for directing resources toward the capacity needs of covered projects.

In other words, the bill duplicates several of the Permitting Council’s functions while leaving behind some of the capabilities that make the Permitting Council so effective.

These drafting choices create legitimate concern about the future of FAST-41. The Permitting Council’s statutory authorities would remain intact, but project sponsors might see less reason to seek coverage when similar deadlines, tracking, and coordination requirements are available through CEQ. And if sponsors do not understand the additional benefits of FAST-41, they may never seek the support that could help move their projects forward.

So why create a parallel structure rather than build on the one Congress already established? There were several reasonable options that would produce a better outcome than what BAAJA offers.

Congress could have expanded FAST-41 eligibility, assigned the new tracking and coordination responsibilities to the Permitting Council, or explicitly divided responsibilities between CEQ and the Permitting Council. It could even have decided to consolidate those responsibilities within CEQ and repeal FAST-41.

Instead, BAAJA largely ignores the relationship between the two institutions. That omission is especially puzzling because CEQ already sits on the Permitting Council.

I am not arguing that FAST-41 is perfect or that the Permitting Council should be immune from reform. Quite the opposite. There are opportunities to strengthen the Permitting Council, expand its reach, and improve how it supports infrastructure development. I have testified twice before Congress on proposals to do just that—it is not a new concept.

But creating a parallel system without reconciling it with the existing one is a curious approach to legislation intended to improve efficiency and reduce complexity.

Congress has spent more than a decade building an institution dedicated to improving federal permitting. Why not build on that investment rather than start over—particularly when the new structure doesn’t retain all the capabilities of the existing one?

So Now What?

BAAJA is a mixed bag of permitting reform and energy policy. As with any bipartisan negotiation, compromise is necessary, and the four senators who assembled this package deserve credit for tackling some difficult issues. However, we should consider this a starting point for broader negotiations, not a finished product awaiting an up-or-down vote.

There are consequential tradeoffs in this legislation that deserve serious debate. Is expanding federal authority to plan and site energy transmission worth exempting broad categories of infrastructure—well beyond energy—from NEPA? Should Congress make meaningful Tribal consultation under Section 106 more discretionary in the name of permitting efficiency? And why create duplicative permitting structures within CEQ when Congress has already established the Permitting Council to perform many of those functions? These are not minor technical questions. They go to the heart of what we are trying to accomplish through permitting reform and what we are willing to sacrifice to get there.

There are also drafting problems that should be relatively straightforward to resolve, including the overlap between CEQ and the Permitting Council and omissions such as the exclusion of National Marine Fisheries Service from the proposed delegation of Section 7 consultation authority. Congress should have an opportunity to address these issues through a meaningful amendment process rather than accepting the negotiated package as a fait accompli. The legislation is simply too consequential, and its reach too broad, to treat the work of four senators as the final word.

I do not subscribe to the argument that holding your nose and voting for an imperfect bill is necessarily better than doing nothing. Compromise is an essential part of legislating but that does not mean every compromise produces good policy. Progress at all costs is not progress.

Do we need permitting reform? 1,000 percent yes. Does BAAJA strike the right balance? In my view, 1,000 percent no. The challenge now is to build on what works, correct what does not, and produce a package that improves infrastructure delivery without unnecessarily sacrificing environmental protections and meaningful public involvement. BAAJA should be the beginning of the conversation, not the end of it.