Key Takeaways

• What Happened: On September 30, bipartisan Senate committee leaders introduced the Bipartisan American Affordability and Jobs Act of 2026. The bill would dramatically change environmental rules governing project development, especially for energy and mineral projects, by increasing permitting certainty, streamlining permitting processes, limiting litigation, and enacting important new provisions on interstate transmission, offshore transmission, geothermal, and hydropower energy, among other provisions.
• Project Approval Changes: The bill would add exemptions from NEPA review, emphasize use of categorical exclusions, shorten NEPA and substantive permitting deadlines, add new front-end and post-NEPA authorization deadlines, narrow aspects of NEPA analysis, constrain judicial review and remedies for project approvals, and limit when agencies may revisit previously issued approvals. It would also make important changes to provisions of the Endangered Species Act (ESA), Clean Water Act (CWA), and National Historic Preservation Act (NHPA) that relate to project approvals. These changes are not limited to energy and mineral projects.
• Who Is Impacted: Project sponsors requiring federal permits, approvals, funding, or rights-of-way, particularly for energy and infrastructure projects, and parties that may challenge those approvals.
• Next Steps: The bill has been introduced but has not been enacted. Congress could amend the legislation as it moves through the legislative process. Project sponsors should review the bill and assess how the proposed amendments would affect pending or planned projects, ongoing environmental reviews, permitting schedules, existing federal authorizations, or anticipated litigation. Sponsors may also consider project-specific technical input, directly or through industry associations, and should monitor legislative developments.

The 400+-page bill may be the culmination of years of advocacy and negotiations, with complex provisions affecting a wide range of project development issues; the discussion below focuses on key provisions affecting project approvals and subsequent litigation.

NEPA: New Exclusions, Deadlines, and Procedures

The bill would expressly characterize NEPA as procedural and informational and provide that NEPA does not mandate a particular substantive outcome. Adding to NEPA amendments in 2023, it would redefine a “major Federal action” as a proposed agency action that the agency determines is subject to substantial Federal control and responsibility and would exclude several actions involving limited federal participation and specified infrastructure activities.

The lead agency would have a greater role in defining the purpose and need, reasonable alternatives, and reasonably foreseeable effects within its jurisdiction. For alternatives other than no action, it would consider only those that fulfill the purpose and need and meet the project sponsor’s goals. Cooperating agencies would have generally more limited input and roles.

Unless a shorter deadline applies, an agency would have 60 days after receiving an application to determine whether it is complete or identify missing information. Once complete, the agency would have another 60 days to determine that no environmental document or further agency action is required, require an environmental assessment (EA), or issue a notice of intent to prepare an environmental impact statement (EIS). Agencies also could combine certain categorical exclusions and, in specified circumstances, rely wholly or partly on state or tribal environmental reviews. The bill also would extend the period during which an agency may rely on a qualifying programmatic environmental analysis without additional review from five to ten years, absent substantial new circumstances or information.

NEPA already sets a baseline one-year deadline for environmental assessments and a two-year deadline for environmental impact statements. The bill would add post-NEPA review milestones. A finding of no significant impact must be issued within seven days of an EA, unless the agency determines an EIS is warranted. After an EIS, the lead agency would issue a record of decision within 45 days, participating agencies would decide outstanding authorizations within 90 days, and nonparticipating agencies within 120 days. Similar authorization deadlines would follow an EA. The one-year deadline in § 1402 applies to specified types of covered projects, not every federal authorization for which an EA or EIS is unnecessary.

NHPA, ESA, CWA Amendments

NHPA

The bill would codify several definitions and processes currently located in the Advisory Council on Historic Preservation’s existing or proposed regulations implementing the NHPA Section 106 process. It would exclude from an “undertaking” triggering Section 106 many of the same, and even broader, actions excluded from a “major federal action” triggering NEPA review. The relevant scope of analysis would be narrowed to generally omit effects that are indirect or result from any portion of a project not subject to federal control or responsibility. The process would be shortened, with greater emphasis on an action agency’s ability to conclude Section 106 consultation without an agreement on resolving adverse effects to historic properties.

ESA

The bill would define the key term “best scientific and commercial data available,” shorten the periods for formal Section 7 consultations, and initiate a program to allow qualifying states to assume specified federal Section 7 responsibilities for in-state projects (akin to the NEPA assignment program for transportation projects), while allowing applicants to elect federal consultation in any event. APA challenges to biological opinions would go to the D.C. Circuit within 150 days after the opinion is made public.

CWA

The bill would limit State-level Section 401 certifications to defined “water quality requirements” and require clear and convincing evidence for certain denials and conditions. It would extend the maximum term for permits issued under state National Pollutant Discharge Elimination System (NPDES) programs and Section 404 general permits from five to ten years, require the Army Corps of Engineers to maintain specified nationwide permits for certain activities (e.g., pipelines) involving discharges into less than two acres of navigable waters, and limit EPA’s ability to exercise its CWA 404(c) veto authority.

Permit Finality

The bill’s “Project Certainty” title would restrict post-approval agency reversals—a concept traditionally understood but that has increasingly become an issue with changes in political administrations. Subject to enumerated exceptions, agencies could not revoke, rescind, withdraw, terminate, suspend, amend, or alter covered federal authorizations in effect on or after September 16, 2026, or otherwise interfere with or prevent construction or operation of a project once it has secured all necessary federal authorizations and permits. Additional project-certainty provisions are specific to energy and mineral projects. Covered authorizations include records of decision, findings of no significant impact, biological opinions, incidental take statements, permit verifications, and other specified approvals.

Judicial Review

The bill would substantially limit judicial review of NEPA, ESA, or NHPA claims brought under the Administrative Procedure Act (APA).

Statute of Limitations

Unless another federal law provides a shorter deadline, covered claims would need to be filed within 150 days of the challenged agency decision (akin to the current filing deadline against certain infrastructure projects under FAST-41).

Venue

Covered NEPA claims would go directly to the court of appeals for the circuit where the project will be constructed, expanded, or operated. Covered NHPA claims generally would also proceed directly in a court of appeals, subject to specified exceptions. Challenges to Section 7 biological opinions would be brought in the D.C. Circuit. This would effectively end all NEPA and NHPA litigation and much ESA litigation in district courts where such cases have largely been brought. It would also ensure a three-judge panel reviews such claims.

Standing

If an agency offered an opportunity to comment, a NEPA or NHPA challenger would need to raise the issue in a sufficiently detailed substantive comment and allege an actual or imminent injury in fact amounting to “direct harm,” arguably tightening typical Article III standing requirements to bring such claims based on claimed procedural injuries.

Standard of Review

The bill also would direct courts facing NEPA and NHPA claims to afford “substantial deference” to agencies regarding the scope and contents of environmental documents, codifying the Supreme Court’s recent “course correction” on NEPA in Seven County Infrastructure Coalition v. Eagle County, discussed here. Moreover, for challenges to agency actions that undermine previously issued covered authorizations, the agency would bear the burden of showing by clear and convincing evidence that narrow circumstances justify such reversals. Courts should “expedite” cases involving such claims or other challenges to specified energy, mineral, carbon-management, and wildfire-related authorizations.

Relief

Where a court finds a NEPA or NHPA violation, the bill would largely eliminate relief other than remand without vacatur, with the agency having no more than 180 days to cure the deficiency. The underlying agency authorization would remain in effect, and the project could continue during remand. A preliminary injunction would require a plaintiff to show, among other things, a substantial likelihood that the authorization violates a federal law other than NEPA or the NHPA, and satisfy the traditional equitable factors. For CWA claims, relief beyond remand requires “imminent and substantial danger to human health or the environment.”

What Project Sponsors Should Consider Now

The bill text has been introduced but not yet finalized or enacted, so project sponsors should continue to follow existing law. In the meantime, sponsors should:

• Monitor legislative developments, including any amendments and effective dates.
• Assess whether the proposed amendments would affect pending or planned projects, ongoing reviews, existing federal authorizations, or anticipated litigation.
• Consider whether project-specific technical input is warranted, directly or through industry associations.
• If enacted, adjust application-completeness documentation, administrative-record development, permitting schedules, and litigation planning.

Beveridge & Diamond’s NEPA & Historic Preservation Reviews and Infrastructure, Project Development & Permitting practices advise project developers, owners, and public entities on federal environmental review, permitting, and litigation under NEPA, ESA, CWA, NHPA, federal lands management statutes, and other laws and regulations. For more information, please contact the authors.