The goal of permitting reform and “cutting red tape” has long held fairly broad bipartisan support, and the issue has taken on increasing salience this election year as concerns about affordability in general and energy costs in particular have emerged as a major campaign issue. But support for permitting changes is often qualified – elected officials want to streamline permit processes in ways that don’t impact environmental protections.

Interest in streamlining is driven in part by the complexity of environmental protection laws, which are implemented by a wide variety of agencies, some with state delegations, and involve technical requirements and project-specific review processes that can vary by location. Regulations, agency procedures, and court decisions have also shaped how the laws operate in practice.

Unfortunately, that complexity, and the way that court precedent and agency interpretation affect implementation, can also make it difficult to discern whether a proposed policy change will meet that criteria of “not negatively affecting environmental quality”. To some extent too, what constitutes protection of environmental standards may be subject to debate.

In their statements releasing their permitting bill, the sponsors of the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA) sought to assure the public and fellow Senators that the bill would achieve the right balance between streamlining and environmental protection. Senator Capito described the bill as “continuing to protect the land, water, and wildlife we all cherish” and Senator Heinrich committed to “protecting important environmental safeguards and protecting the ability of Tribes to formally consult during these processes.”

The energy developers and their industry associations and stakeholders—both renewable and fossil—were largely able to endorse the bill from the day it was dropped on September 30^th. But others, including environmental organizations and utilities, offered more qualified statements, praising the bipartisanship and the goals, while noting they were still assessing the provisions of the 400+ page document and were not ready to fully endorse until they had more fully reviewed.

In the last week, those reviews have started to sharpen into analysis that includes voices of support for specific provisions but also concerns and recommendations for changes.

Emerging concerns about environmental impact are particularly focused around changes proposed to the Clean Water Act and National Historic Preservation Act (NHPA), and on the flip side utilities are starting to signal concern on the transmission siting provisions.

Clean Water Act

On October 19, the Natural Resources Defense Council released a response to the bill that identified “a number of concerning provisions” including that the bill would “weaken key elements of core environmental laws, including the Clean Water Act (CWA)”. Their analysis points to the fact that BAAJA would prohibit states from considering “construction-related effects [on water quality] such as erosion, sediment, contaminated runoff, groundwater pollution, and damage to wetlands and streams, or ongoing impacts from the operation of the project” in making a Section 401 water quality determination. They also note that the “bill also weakens the Clean Water Act’s general permitting program (administered by the U.S. Army Corps of Engineers) for dredging and filling waters. The bill directs the Corps, when creating general permits, to look only at the harm that results from filling in waters. No other water impacts like water pollution or groundwater depletion could be considered.”

Some of these concerns and others relating to the Clean Water Act were also raised in a letter to Congressional leaders from the Environmental Council of the States (ECOS), the national nonpartisan association of state environmental agencies. In their letter, ECOS stated they “appreciate the motivations… and share the broad goals” of the legislation, and expressed support for some of the provisions including extending the maximum permit duration for National Pollutant Discharge Elimination System (NPDES) permits from 5 years to 10 years. However, the association of state agencies also offered “questions and concerns about the interpretation and implementation of several provisions.”

For instance, state agencies questioned the provision that allows state certifying authorities to deny applications only based on “clear and convincing evidence” that the certification would violate applicable water quality requirements. ECOS notes that “clear and convincing” is not defined. They also raise concern that the provision requiring permit conditions to be the “least burdensome” approach to avoid water quality violations, “shift[s the] burden from the applicant to the certifying authority to demonstrate compliance” since currently applicants are required to determine their approach to meet water quality standards.

ECOS also expressed concern about the language in section 1202 of the bill that could “prevent states from using Section 401 to review [natural gas pipeline or transmission line] infrastructure and address significant construction-related sediment runoff or hydrological modifications along pipeline and transmission line rights-of-way”. According to their letter “these provisions in the bill and uncertainty around their impact cause concern for some states that they could lose substantial authority to address the full range of water quality impacts associated with these projects.”

National Historic Preservation Act

Another area emerging as a source of concern are the changes to the National Historic Preservation Act. According to NRDC analysis, BAJA would also “dramatically curtail the rights and powers of Tribes enshrined in Section 106 of the NHPA, effectively limiting Tribes’ ability to protect their lands and culturally significant places from proposed projects with a federal connection.” Tribal associations have signaled opposition from immediately after the release. Other associations have released policy statements more recently, including a letter from the National Parks Conservation Association released this week. Like others, the letter acknowledges a shared “goal of building clean energy and transmission faster” but urges changes to the bill and particularly in which they describe as one of their “greatest concerns… Division B, Title III, which rewrites the National Historic Preservation Act (NHPA).” NPCA takes issue with a BAAJA Section 2301 which “makes consultation discretionary and narrows the definition” of protected properties, “ends review for many federally funded projects, restricts legal actions, and allows the federal government to take funding and responsibilities away from State and Tribal Historic Preservation Offices.”

Another organization completing their review this week is also urging changes—the Theodore Roosevelt Conservation Partnership, which represents the interests of hunters and anglers, questions “how much flexibility agencies will have [as a result of the permit certainty provisions] to make project-specific decisions when habitat conditions, fish and wildlife impacts or other factors require additional review or management.” In their analysis released today they state they are “actively encouraging Congress to revise Sections 1401 and 1402 to preserve agencies’ ability to implement adaptive management strategies, enforce permit conditions, and respond to significant new information affecting fish, wildlife, water resources, and public lands.”

Transmission

One critical entity that has yet to weigh in publicly is the Edison Electric Institute – the trade association for utilities, which has weighed in against past efforts to change the transmitting siting provisions that expand federal authorities, potentially at the expense of state and regional utility authorities. Although EEI has not released any public information, one of its members, Oklahoma Oil and Gas has expressed the intent to urge changes to the transmission provisions in a lobbying sheet. The American Public Power Association, which represents not-for-profit, community-owned utilities, has also not released a position since a statement on 9/30 that requested for member feedback with its members and said it would soon share a detailed summary and analysis.

Despite this growing list of organizations expressing concerns, most associations still find provisions they like and can endorse within the whole of the bill. Certainly, a strong chorus of support continues to be heard from energy developers, trade associations, and numerous labor unions. As Senate negotiators turn to work on a potential managers’ amendment to improve the bill, the challenge they’ll face is that the provisions that make the bill more palatable for the environmental-minded organizations are exactly those that raise concerns for utilities and vice versa.