After Election Day, when Congress returns for its post-election session, the Senate will consider a sweeping bipartisan bill to ease regulatory constraints on energy projects. The Bipartisan American Affordability and Jobs Act, or BAAJA, supercharges clean-energy development by cutting red tape and curbing utilities’ ability to block competition, but it would also make it easier to build fossil fuel infrastructure and weaken longstanding environmental protections. That trade-off has divided Democrats and the environmental community. Some see the bill as a rare opportunity to accelerate the clean energy transition; others fear it would give President Donald Trump license to harm the environment in the remaining two years of his term.
The controversy largely centers on one section, “Project Certainty,” which limits presidential administrations from using the federal permitting process to fight energy sources they dislike. Democratic Senate negotiators Sheldon Whitehouse and Martin Heinrich backed the provisions, wanting to guard against future GOP attempts to sabotage clean energy projects, as the Trump administration has done with offshore wind. But a number of environmental groups warn that this part of the bill could backfire by locking in an unsustainable rate of fossil fuel development in perpetuity. If that happens, they argue, BAAJA would be a climate disaster no matter how much it boosts clean energy.
BAAJA could indeed make it harder for future administrations to reverse environmentally damaging projects. But sweeping claims that the bill could lock in “fossil fuel dominance” rest on dubious interpretations of the legislative text and flawed assumptions about how energy companies operate. Market conditions constrain oil, gas, and coal production far more than federal permits. Clean energy developers, by contrast, enjoy enormous demand for their power but face maddening permitting delays and grid bottlenecks that prevent them from meeting it. That makes it difficult to argue that passing BAAJA—which Congress could do during the lame-duck session beginning November 9—would be worse for the climate than rejecting it.
BAAJA’s “Project Certainty” section contains two key provisions. The first bars federal agencies from rescinding, terminating, or altering permits granted to energy projects—with limited exceptions, such as when a court finds a permit was issued illegally. Some critics fear this could allow Trump to crank out “forever permits” for dirty energy that a Democratic administration couldn’t undo. “There’s an incentive for developers to come up with any idea they can, and get it rubber-stamped before Trump leaves office,” says Jeremy Symons, the president of the Center for Energy and Environmental Analysis think tank.
This provision also prohibits federal agencies from taking any action that interferes with the “operation at full capacity” of permitted projects, which worries some environmentalists. A group of former Environmental Protection Agency lawyers warns that this language could prevent agencies from issuing broadly applicable regulations under laws like the Clean Air Act, if they impose costs on existing power plants.
The second provision allows companies to sue the federal government if they can prove it discriminated against a certain type of energy project in the permitting process. Such discrimination might take the form of a “substantial increase” in permitting delays for a project type compared to the previous five years. The environmentalists’ fear: Codifying the second Trump administration’s record of fossil fuel permit approvals as a standard that future administrations must follow. According to the environmental litigation group Earthjustice, fossil fuel developers “may be more able to show discriminatory treatment from a baseline of rapid permitting during the Trump administration” than clean energy developers, “who will be operating from a baseline of slow permitting.”
These interpretations of the bill paint a scary picture. They suggest Trump could dictate the trajectory of fossil fuel development forever by locking in a flood of projects now, and then forcing future administrations to maintain his pace. Symons, a veteran of energy legislation fights on Capitol Hill, told me that “the project certainty provisions are the single most dangerous legislative provisions that I have ever seen this close to a finish line in Congress.”
BAAJA likely would allow Trump to lock in certain projects that a future Democratic administration might be inclined to reverse—for example, mining roads through national parks, or drilling leases in the Alaskan Arctic. By the same token, Trump would have to end his blockade of offshore wind projects that could power millions of homes. Still, for advocates of nature conservation and historical preservation, this may be an intolerable tradeoff, as John Podesta, the climate czar in Joe Biden’s White House, has argued.
And while legal experts can only guess how courts would interpret BAAJA’s prohibition on federal actions that interfere with the “operation at full capacity” of permitted projects, even supporters of the bill told me they hope Congress clarifies this language to ensure it does not deter agencies from issuing health, safety, or environmental regulations. “This is a provision that Democrats sought, so if there is a technical fix to better correspond with their intent, ideally [Senate negotiators] would take advantage of the intervening period before the floor vote to fix it,” says Marc Levitt, a former EPA official and now director of environmental regulatory reform at the Breakthrough Institute, an “Abundance”-aligned, pro-technology environmental group.
On a macro level, however, BAAJA would be unlikely to lock in a Trumpian vision of unbridled fossil fuel development, for two reasons.
First, the argument that the bill compels future administrations to match Trump’s frenzied approval of fossil fuel permits is misguided. While agencies could face lawsuits for a “substantial increase” in permitting delays, delays count as such only if they exceed years-long timelines laid out in the bill, preserving flexibility for agencies to take their time evaluating permit applications. Crucially, litigants must also prove government intent to discriminate against their project type, a high bar. In short, this provision is much less restrictive than critics have made it out to be. “If the Trump administration gets a bunch of fossil fuel projects permitted really quickly, that average time has no bearing on what the next administration does,” says Aidan Mackenzie, an infrastructure fellow at the Institute for Progress think tank.
A more fundamental problem with the “lock in” argument is that federal permits alone don’t set the trajectory of fossil fuel development. Energy market conditions matter far more.
Take oil drilling. Exploration and production companies are currently sitting on over 10,000 unused Bureau of Land Management drilling permits, a fairly typical surplus. In other words, permitting is not the constraint on drilling activity. Rather, the constraint is the capital discipline of the companies themselves, who face shareholder pressure to be cautious about making the expensive investments required to expand production. Indeed, even as the Iran war has sent global oil prices soaring, U.S. producers have barely expanded production. Reaping the benefits of scarcity, it seems, beats heeding Trump’s exhortations to drill, baby, drill. “These are mature manufacturing businesses,” says Amy McCullagh, an independent analyst and author of the Measured Depth Substack. “They attract the capital they do by generating strong free cash flow and returning those profits to investors via buybacks and dividends.”
Moreover, most American drilling activity happens on state and private lands, while BAAJA’s permitting certainty provisions cover only federal permits. Federal permitting is thus “not a lever that would likely change [drilling] activity in the U.S. at a macro level,” McCullagh said.
Market conditions also determine the development of natural gas pipelines. Developers only build them after securing long-term capacity commitments from shippers (often producers or utilities). When demand is strong, BAAJA could help projects with secured commitments build faster—mainly through a provision that would limit states’ ability to block interstate pipelines under the Clean Water Act. But even with new project-certainty powers, the Trump administration couldn’t accelerate development by permitting a barrage of speculative projects, as some BAAJA critics charge. Developers “are not going to just build these pipes out of nowhere,” says Dulles Wang, a director of Americas gas research at consultancy Wood Mackenzie. “Somebody has to hold the bag.”
The same story applies to liquefied natural gas (LNG) export terminals. These facilities cost billions to build, and lenders want to see guaranteed revenue in the form of long-term purchase agreements with buyers. But buyers are currently hesitant to commit amid concerns about a looming global supply glut, and several LNG terminals that secured permits have stalled out in the pre-construction phase. “We’re waiting on commercial momentum to pick up to support the build-out of these projects,” Wang said. “The constraint is not on the regulatory front.”
Coal provides the starkest example of the limits of Trump’s ability to spur fossil fuel development. The administration has done what it can to boost coal production: Expediting permitting, making millions of acres of federal lands available for mining leases, and handing out over $100 million to subsidize proposed coal plants in West Virginia and Alaska. But amid weak demand for expensive coal power, these efforts have overwhelmingly flopped. After lease sales on federal lands in Montana and Utah attracted only lowball offers, BLM had to reject them and postpone other planned sales. And analysts doubt that the West Virginia and Alaska plants will ever be built, despite the subsidies Trump lavished on them, given their astronomical costs and a lack of interest from buyers.
Nobody can be 100 percent certain of the law’s effects. Still, two preliminary modeling efforts released last week (one from a solar industry trade group) find that BAAJA would lower net emissions compared to a baseline scenario where the bill doesn’t pass. This makes sense looking at the bill’s impact on specific project types. As discussed previously, the bill probably wouldn’t significantly affect oil production, LNG exports, or coal power plants. It would likely speed the gas pipeline build-out—particularly in the Northeast, where states have blocked pipelines using a permitting authority that BAAJA restricts—although this would not be the clear-cut climate harm that some make it out to be. More pipeline capacity into the Northeast could deliver a short-term emissions reduction by displacing dirtier, higher-cost shipped gas and oil. Nevertheless, it would likely drive up emissions over the long run by enabling greater gas consumption and weakening the investment case for renewables.
On the other side of the ledger, BAAJA would unleash clean energy projects and electrical transmission infrastructure, which are generally much more permit-constrained than fossil fuel projects. It could also curb a major driver of skyrocketing gas use—private, on-site power plants for data centers—by making it easier for them to connect to the electrical grid. The bill would make data centers pay more than their fair share for grid upgrades and energy costs, but analysts expect operators would prefer this arrangement to building more expensive, less reliable on-site plants, as long as they can connect quickly. “Broadly speaking, [data center operators] would prefer to have a grid connection,” says Dan O’Bierne, a researcher at Global Energy Monitor, noting that shortages of fuel-efficient turbines and the need for backup capacity raise the costs of on-site gas generation.
To be sure, BAAJA is no substitute for a comprehensive climate policy. But the bill’s supporters argue that its reforms are a necessary precondition for any such policy to be effective, whether that be new clean energy subsidies, a carbon tax, or a national clean electricity standard. “If you haven’t done permitting first, that future bill is not going to work well because it’s going to be so hard to build the clean stuff,” says Xan Fishman, executive vice president of the Bipartisan Policy Center’s energy program.
In other words, environmentalists might be worried about the wrong “lock-in” scenario. If Congress muffs a generational opportunity to pass durable, bipartisan permitting reform, it could lock in a regulatory status quo far more favorable to fossil fuels than renewables.
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