On September 30, 2026, the top Democrats and Republicans on the Senate Energy and Natural Resources Committee and the Senate Environment and Public Works Committee introduced the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA) to amend many of the laws governing federal permitting. This article will focus on Title I of BAAJA, which amends the National Environmental Policy Act (NEPA) for the purpose of streamlining the NEPA process by limiting the kinds of federal decisions that require environmental review, making the process of environmental review faster, and limiting judicial review of claims that NEPA has been violated.

If enacted, these amendments would come on the heels of a series of recent and dramatic changes to NEPA including: 1) in 2023, Congress substantially amended NEPA for the first time through the Fiscal Responsibility Act adding numerous new statutory provisions designed to speed  up environmental review; 2) in 2025, the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County limiting the scope of environmental effects agencies must analyze and directing courts to be highly deferential when reviewing NEPA claims; 3) also in 2025, the Council on Environmental Quality revoked its regulations that for nearly five decades had provided a common framework for environmental review across the federal government, and 4) since then, many federal agencies have adopted new NEPA procedures. The magnitude of those changes means that it is difficult to determine what NEPA implementation looks like today, even in the absence of additional legislation. The dust simply hasn’t settled.

That extensive uncertainty doesn’t mean further reform isn’t needed, but it does make it difficult to evaluate some of the potential implications of BAAJA. Relatedly, the additive costs and benefits of Title I may be less than its supporters hope and its detractors fear, because some of the provisions that might increase speed while degrading the quality of analysis are already baked into the system.

With that in mind, I want to discuss several features of Title I that may have nonobvious, and perhaps unintentional, consequences.

Complexity

Title I is complicated, which could undermine its efficacy at improving the efficiency of environmental review, because, as a general rule, a more complex statutory scheme will be more complicated for agencies to implement and may result in less deferential judicial review.

I’ll take the potential for complexity to lead to less deferential judicial review first: As the Supreme Court explained in Seven County Infrastructure Coalition, courts should not defer to an agency’s interpretation of the meaning of NEPA’s statutory text. That case involved an environmental review conducted under the original version of NEPA, which included very little text. The 2023 amendments to NEPA substantially expanded the amount of statutory text, and Title I would expand it even more. Agencies will need to figure out what all of these new provisions mean and will receive no judicial deference in doing so. (Although, as discussed below, the bill will prohibit courts from entering injunctions for NEPA violations, so the increased legal risk of reduced deference may not end up mattering.)

Complexity will also reduce efficiency in circumstances where the statutory framework does not easily apply to a specific project or arrangement of agencies and authorities. Here are two examples:

First, section 107(a)(1)(C) under the bill would direct a lead agency to “define and determine . . . the reasonably foreseeable environmental effects of the proposed agency action subject to the jurisdiction of the lead agency by law,” presumably to define the scope of an Environmental Impact Statement (EIS) or Environmental Assessment (EA). But what happens if an underlying project requires cooperating agencies (whether federal, state, tribal or local) to take distinct actions with distinct effects, such as when a road requires a permit from the Army Corps of Engineers to cross a river and from the BLM to cross public lands? Can the lead agency include those even though they are not effects of the lead agency’s proposed action?

Second, section 107(a)(2)(A)(i) under the bill would provide that cooperating agencies include federal, state, tribal, or local agencies with “jurisdiction by law with respect to any environmental effect involved in a proposed agency action.” Does that include a non-federal agency that needs to issue its own permit for the underlying project, for example if the road described above also crosses state property?

The answers to both of those questions must be yes – because the bill is intended to improve interagency coordination. But the statutory text doesn’t appear to provide that answer, at least in a fashion that I could discern.

Scientific Information

The bill would limit the scientific information that an agency is required to consider in an environmental review. I understand the goal: create a clear end point to the new information an agency must incorporate into an environmental review to avoid analytical paralysis where every time an agency thinks it has all of the information in front of it, a new study pops up, requiring yet more analysis. It might never end . . . although, the bill hardens the deadline for agencies to complete an EA or EIS and makes it easier for project sponsors to enforce those deadlines, so there are other ways to bring an analysis to a conclusion.

While the idea of enabling an agency to decline to consider new scientific evidence that emerges late in the process makes sense to me, how the bill would do so does not. Section 107(b)(3)(A) under the bill would allow agencies to ignore “scientific or technical research that becomes publicly available after the date of publication of a notice of intent or decision to prepare an environmental document for a proposed agency action.” But those dates precede any public comment process, whether on a notice of intent or a draft EIS or EA. The result is that this provision empowers agencies to ignore “scientific research” provided in the comment period unless it was already made public, and the bill doesn’t even tell us what that term means. I think there is a plausible argument that any personal observation about the natural world could count as “scientific research” as demonstrated by the popular iNaturalist app, which collects data from the individual observations of its users. Regardless, public comment processes should be designed to provide agencies with new information. Authorizing agencies to simply ignore information submitted to them in a comment period drains meaning from the process.

Judicial Review

The bill establishes a new section 111 of NEPA that would substantially constrain lawsuits that include a claim that an agency violated NEPA when issuing an authorization—which is broadly defined to encompass any regulatory permission, authorization, or consultation necessary for a project. Such claims would be subject to a 150-day statute of limitations, could only be filed in the court of appeals that covers the geographic area where a project occurs, and would be subject to expedited procedures.

Those are big changes, but the biggest by far is what the bill has to say about the remedy for a NEPA violation. If a court finds that an agency has violated NEPA, it may only remand to the agency with directions to correct its error and may not enter an injunction that would halt the project until the remand is completed. That’s already what happens most of the time, but removing the possibility of an injunction is a big deal. It means that even if an agency simply ignores NEPA altogether and performs no analysis at all the court cannot pause a project until environmental review can occur.

That doesn’t necessarily mean that the environmental review an agency conducts on remand is meaningless. At least for federal projects, section 111 doesn’t prevent the agency issuing the authorization from choosing to modify or revoke it based on information and analysis developed on remand. And agencies do choose to modify decisions when they conduct additional analysis that reveals impacts are greater than they thought or that mitigation measures are available to address an impact that cannot be avoided.

For non-federal projects—meaning that a state, tribe, local government, company, or individual has applied for an authorization for a project that entity wants to undertake—the effect of section 111 would be to block agencies from modifying an authorization after correcting their environmental review. That’s because section 111 provides that an authorization remains “in effect” during a remand, and a provision in another title of BAAJA addressing project certainty prohibits an agency from revoking or modifying any authorization that is “in effect.” That provision includes narrow exceptions, but none of them apply. The one that might appear to apply allows an agency to modify an authorization to prevent “specific, urgent, substantial, and proximate harm or damage to life, property, national security, or defense,” but because it can only be invoked based on “new information” that was “not considered in the underlying environmental review process,” it could never justify amending an authorization based on additional analysis performed on remand in the environmental review.

Section 111 also establishes a new standard for injunctive relief for non-NEPA claims that are filed in the same lawsuit as a NEPA claim, for example, if a plaintiff brings a lawsuit claiming that an agency violated NEPA and also the Clean Water Act. Section 111 indicates that a preliminary injunction could be issued for such non-NEPA claims but then sets a stricter standard than would apply if the non-NEPA claim was filed independently. In other words, section 111 makes a NEPA claim a poison pill that compromises other claims a plaintiff may have.

Conclusion

The current state of NEPA implementation is hard to discern due to extensive changes occurring across the federal government. Nonetheless, if enacted, BAAJA will fundamentally change when and how environmental review under NEPA occurs, how federal, state, tribal, and local agencies collaborate, and when and how courts are involved. I’ve tried to identify some of the less obvious potential implications here to help illuminate what we might expect if the bill passes.

Justin Pidot holds the Ashby Lohse Chair in Water & Natural Resources and is co-director of the environmental law program at the University of Arizona James E. Rogers College of Law. From January 2021 to June 2024, he served as general counsel at the White House Council on Environmental Quality. This article is based in part on a blog post he published on the Legal Planet Blog and comments he posted on LinkedIn.