The bill text for the Bipartisan American Affordability and Jobs Act, released by the leaders of the Senate Environment and Public Works Committee together with the Senate Energy and Natural Resources Committee, runs 417 total pages in length and covers a wide ground, changing agency review process, court review of those decisions, state roles, developer rights, and opportunities for public engagement. Some of the changes are specific to energy projects, including roughly a quarter of the bill that is dedicated to changes to the Federal Power Act requirements for transmission and grid operators, in addition to language specifically addressing mining, geothermal leasing, hydropower, offshore wind, and natural gas pipelines. Other changes amend the resource protection laws themselves and will apply broadly to any applicant for a permit or review under those laws, including major changes to the National Historic Preservation Act, Endangered Species Act, and Clean Water Act.

This article seeks to highlight the most significant changes being proposed by the bill grouped by three themes that emerge in this bill across the board. (A separate article discusses the context and possible legislative strategy. Another article goes into additional detail on ESA and NHPA changes)

The first theme is constraints on decision-making: the bill repeatedly constrains not only the timeline and review period for permit reviews but also the information an agency is allowed to consider in making that permit decision. Another theme across multiple sections is the change to judicial review of projects, also constraining review considerations in courts and importantly, rebalancing power away from public litigants and toward permit applicants. Finally, the third theme is the use of legislative exemptions and other changes that narrow the set of actions subject to review.

Constraints to Agency Information and Timelines

The move to constrain the information-gathering in response to receipt of a permit application has been a feature of proposed and enacted changes to laws and regulations for several years but this bill takes the approach much farther. In some cases, the language permits an agency not to consider certain information, e.g. in the amendments to the National Environmental Policy Act “no Federal agency shall be required to consider any scientific or technical research that becomes publicly available after the date of publication of a notice of intent.”

Other changes forbid an agency from considering certain information, e.g. under the Clean Water Act section 404 permit consideration, “the Secretary shall consider only the effects on compliance with water quality requirements.” Similarly, under Section 401, a certifying authority is forbidden to deny certification for any reason other than by presenting “convincing evidence” that it would not be possible to grant without violating water quality standards.

Under the Endangered Species Act, new changes require the Secretary to “accept and integrate State-collected data” when making a determination to list or delist a species as threatened or endangered. Further, the bill redefines the process for evaluating species status and for Section 7 consultations and biological assessments, by creating a definition for a previously existing but undefined term in the ESA—“best scientific and commercial data available”. As defined in this bill, the “best scientific and commercial data available” now means the data that already exists at the time of the agency action. Additional language in the new definition regarding the impartial gathering of data “without presumptions or policy prescriptions” could be used to disqualify sources of species data gathered by organizations with stated policy interests.

Timelines for agency actions are shortened across the bill. Under the ESA, consultation timelines are reduced from 90 to 60 days. For projects subject to NEPA, if the CEQ Chair determines an agency has missed their deadline on an environmental document, CEQ can require first senior career officials to dedicate 50 percent of their time to “remedy the failure” and then can also limit any travel of the relevant agency  head to not more than 25 miles from their office until the action is complete.

Unlike past efforts to shorten timelines that were weakened by uncertainty or looseness on when that clock started, this bill takes new steps to constrain timelines by focusing as much on that starting point as the total time. Agencies will face new requirements to determine that a permit application is complete as well as new deadlines that will be measured from that point; they’ll have less flexibility to iteratively identify new information needs, which can improve review accuracy but also extend review times.

As part of the amendments to NEPA, for all agency actions, decisions must be rendered within one year from the date on which the latest application for an action is considered complete. Missing those deadlines also triggers rights of applicants to petition, as discussed below.

Changes to Judicial Review: Balance of Equities, Rights to Petition, Court Jurisdiction, and Timelines

The bill proposes numerous changes to judicial review, from the timeline for and standing of challenges a decision, and the considerations and burden of proof for rendering decisions, to the legal tests a judge must use to approve an injunction. The bill also affects the courts to which legal review will be assigned and the assignment of judges to the cases.

Throughout the bill, the statute of limitations for bringing a suit is shortened to 150 days, for suits to NEPA, ESA, Clean Water Act, and for all energy projects. That’s down from six years under the Administrative Procedures Act, though the statute of limitations has previously been shortened for specific types of suits including for transportation projects.

The bill also limits who will be allowed to petition for relief by only granting standing to those individuals who filed a substantive comments during the project review, on the precise topic that is the subject of their suit, and beyond that the claim would be barred unless the party is also able to allege “an actual or imminent injury in fact amounting to a direct harm.”

If enacted, this bill will make all claims filed under NEPA the original and exclusive jurisdiction of the U.S. Court of Appeals rather than the federal district courts. That may help to produce a more standard review of cases, but also may somewhat reduce the local connection to projects. Judges will also have less discretion to grant an injunction as a result of this bill. It establishes a four-part test for preliminary injunctions that must be cleared, including that an injunction be necessary to prevent irreparable harm and be in the public interest, as well as a substantial likelihood of violating federal law “other than NEPA” but also must have the balance of equities favoring the plaintiff.  Under the Clean Water Act, injunctions could only be granted if the court finds an imminent and substantial danger to human health or the environment for which there is no other equitable remedy available under the law. Courts would not face explicit deadlines in their consideration of claims brought by members of the public, but the bill does direct them to act “as expeditiously as possible” to resolve the cases.

While the bill repeatedly limits the right to litigation brought by members of the public against an agency and reinforces the deference to the agency decision-making, it actually expands the rights to petitions brought by permit applicants against an agency when the agency has exceeded their agreed upon or statutory deadlines. If the court agrees with the applicant, courts would give the applicant injunctive relief in the form of establishing an expedited schedule for review including an order requiring a decision within 60 days. And in such cases, the courts themselves would face a deadline to issue a decision within 120 days. This new right to petition regarding deadlines is created within NEPA as well as in the Clean Water Act and the National Historic Preservation Act; additionally a broad right to petition is granted for authorizations or permits on projects where NEPA is not required. And in that regard, the category of projects where NEPA is not required is set to grow significantly, as discussed below.

Legislative Exemptions from Reviews and Approvals

Many past laws have created new statutory categorical exclusions, or created limited exceptions for review. Those past changes pale in comparison to the sweeping exemptions granted under this proposal.

Significant exemptions from NEPA are granted for transmission lines projects within or adjacent to an existing (transmission) right of way, as well as natural gas pipelines in their operational right of way. CEs are created for limited disturbance created by renewable energy projects, and projects on previously disturbed sites, for geothermal exploration. A new definition of “major federal action” added to NEPA excludes non-federal undertakings with minimal federal involvement or control of the outcomes, projects funded by federal loans, or even grants and cost-share awards where the agency “does not exercise predominant control and responsibility over the subsequent use of such financial assistance or the environmental effect of the action.”

Also fully excluded from being a major federal action: all “lifeline infrastructure”  e.g. any repair, reconstruction, retrofit or replacement of “public works and utilities, including transportation facilities and infrastructure, oil and gas pipelines, electrical power and communication facilities and infrastructure, and water supply and sewage treatment facilities” (per 42 USC 7703) as long as it’s in the immediate vicinity of the lifeline infrastructure and doesn’t alter the function of increase capacity by more than 20 percent. For highway and bridge projects, this exclusion is limited to projects that do not result in additional through travel lanes.

Perhaps even more significant is the change to the Clean Water Act Section 401 approvals, which deals with discharges into water, and the related federal approvals. Under existing law, a certifying authority (e.g. a State or authorized Tribe) may issue, deny, or waive a Section 401 certification, but if denied, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the U.S.. Per this proposal, should a certifying authority waive the 401 water quality certification, the agency with jurisdiction over the Federal license or permit for which the certification application was made shall consider water quality requirements satisfied, and the waiver would not be subject to judicial review.

This change could affect Section 402 and 404 permits under the Clean Water Act as well as Coast Guard Bridge permits, and Section 9 and 10 permits under the Rivers and Harbors Act. Addition changes will also explicitly exempt certain activities from Section 404 of the Clean Water Act. For instance, per the bill an agency “shall consider any effects of a discharge of dredged or fill material into less than 2 acres of navigable waters to be a minimal adverse environmental effect.”

Transportation agencies will be interested in another exemption written into law for the Endangered Species Act, exempting any project in the operational right-of-way, as defined by MAP-21, from any consultation requirements under Section 7 of the ESA.