BAAJA Title IV: “Project Certainty” Reforms Federal Permitting Process

Introducing the Bipartisan American Affordability and Jobs Act of 2026

On September 30, 2026, a significant legislative proposal, the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA), known as S. 5653, was introduced by key members of the Senate Committees on Environment and Public Works and Energy and Natural Resources. This bill, comprising seven titles across two divisions, seeks to overhaul federal environmental review and permitting processes, particularly focusing on energy-related projects.

The proposed legislation is a response to ongoing debates in Congress over the need to reform national permitting laws to enhance energy production and accelerate various projects, including transportation infrastructure, energy developments, and ecological restoration. Past legislative proposals have sparked discussions about whether to prioritize conventional or renewable energy forms, the implications of amending environmental laws on protections, and the potential impact on states’ roles and public involvement in the review process.

Understanding Title IV: Project Certainty

The BAAJA’s Title IV, labeled “Project Certainty,” contains three crucial sections aimed at restructuring how federal agencies handle project permits. Section 1401 would restrict agencies from altering or revoking existing permits unless necessary to comply with court orders or address specific threats. It allows permit holders to sue for enforcement and seek injunctive relief and damages, including 25% to 50% of project costs.

Section 1402 empowers developers to challenge permit delays or denials deemed a “pattern of disparate treatment.” Successful plaintiffs could obtain injunctive relief and damages, ranging from 50% to 100% of anticipated construction costs. Furthermore, Section 1403 mandates a one-year deadline for agencies to approve or reject complete applications for permits not requiring environmental assessments or impact statements under the National Environmental Policy Act (NEPA).

Section 1401: Restricting Agency Actions

Section 1401 prohibits agencies from revoking or altering federal permits or authorizations effective from September 16, 2026, except under specific circumstances. These include court orders, permittee violations, fraud, urgent harm prevention, or requests from permit holders. Agencies must provide written notice to permit holders before taking such actions.

This section shifts the burden of proof to the government and allows for judicial review beyond existing statutes. Prevailing plaintiffs could receive damages and legal costs from the U.S. Treasury’s Judgment Fund, potentially increasing fund expenditures.

Section 1402: Addressing Disparate Treatment

Section 1402 encourages fair treatment of federal permit applications and allows developers to sue for permit delays or denials due to disparate treatment patterns. The section defines such patterns by comparing rates of delays or denials over five years and requires plaintiffs to demonstrate technical and financial project capabilities. Successful claims could result in damages from the Judgment Fund, with constraints on class actions.

Section 1403: Enforcing Timely Decisions

Section 1403 provides applicants a right to judicial review if agencies fail to meet the one-year decision deadline for permits without environmental assessments or impact statements. Exceptions include natural disasters, national emergencies, and lapsed government appropriations. This section allows courts to expedite proceedings and enforce application decision deadlines.

Considerations for Congress

Potential Impact on the Judgment Fund

Sections 1401 and 1402 could significantly increase payouts from the Judgment Fund, which has seen large settlements in recent years, such as for canceled offshore wind project leases. Congress may consider imposing restrictions on Judgment Fund payments to curb potential increases in expenditures.

Implications for Existing Statutes

The restrictions imposed by Section 1401 on agency actions may conflict with existing statutory obligations, like the EPA’s pollution-control standards revisions. Courts may face challenges interpreting these provisions, potentially leading to inconsistent application of federal laws.

Liability Concerns under Section 1402

Section 1402’s liability criteria for “disparate treatment” remain ambiguous, raising questions about whether intent is necessary for government liability. This ambiguity could lead to varying interpretations and enforcement of the section’s provisions.