As the Senate gets closer to its November 9 vote on a permitting deal, some of the nation’s most influential environmental groups continue to withhold their support, including the Natural Resources Defense Council and the Sierra Club.
In recent weeks, both have published lengthy blog posts outlining the pros and cons of the legislation, named the Bipartisan American Affordability and Jobs Act, or BAAJA. They argued that changing how transmission infrastructure is planned and permitted would be a clear win for clean energy, and likely to slash U.S. climate-warming pollution over the next decade. But sections on “project certainty” — aimed at stopping presidents from attacking specific energy sectors — as well as those limiting the ability of states and courts to block projects risk being too great a gift to the oil and gas industry that’s already in high-demand from new data centers, they argue.
“While NRDC is encouraged by the transmission provisions, other elements of the bill are deeply flawed,” the group wrote earlier this week. “We will be seeking improvements in the coming weeks and will take a position on the bill before a floor vote.”
The bipartisan group of four senators who negotiated BAAJA are considering technical changes to the bill, according to an aide. If any are agreed to, they would be incorporated in a so-called managers amendment ahead of a final floor vote. But the odds any changes on the margins would be enough to sway green groups may be small, considering the already uphill battle to appease both Democrats and Republicans in a polarized Congress.
Green groups’ refusal to endorse permitting reform might’ve been a death knell for the legislation in the past. But their hold on leftist politics has begun to falter, as clean energy developers and supporters of the pro-growth “abundance” movement like Third Way and the Searchlight Institute rally in support of BAAJA. These more centrist groups argue that making it easier to build projects like solar, wind, battery storage, and transmission lines is the quickest and most politically viable way to decarbonize the economy — even if that means making concessions to the oil and gas industry.
For some influential climate activists like Bill McKibben, those risks are too great, especially if the permitting deal also makes it harder to block fossil fuel projects, as his group Third Act has done.
“If what we’re worried about is reining in climate change, then we have to build huge amounts of clean energy and that has to quickly drive fossil energy down to zero,” McKibben wrote to his nearly 130,000 Substack subscribers earlier this month. “If we just build lots of both, or even just a little more of clean energy than dirty…we haven’t gotten anywhere.”
The two Senate committees that worked on the deal — Energy and Natural Resources and Environment and Public Works — didn’t return a request for comment at the time of publication.
Heartburn over ‘project certainty’
It’s ironic that the project certainty that was a key demand of Senate Democrats who want to stop President Donald Trump’s attacks on offshore wind has now become the biggest source of BAAJA-induced heartburn for green groups..
As written, these groups argue the bill would instead give oil, gas, and coal projects an advantage over clean technologies. That’s because it would allow any energy developer to sue federal agencies for “disparate treatment” and outlines criteria for proving that claim, such as a pattern of permit delays or denials lasting between 180 days to 280 days — depending on the kind of environmental review required — and intent on the part of the administration.
The approach uses a five-year comparison period that bakes in the Trump administration’s blockade of permits for solar and wind projects on federal lands and waters, according to NRDC, Sierra Club, and Earthjustice. That would make it harder for clean energy developers to prove a substantial increase in delays or denials that have become the norm across the Interior Department, Pentagon, and other agencies.
Jeremy Symons, president of the Center for Energy and Environmental Analysis, is worried about potential payouts to plaintiffs if they win their case: between 50% to 100% of expected construction costs, “reasonable” litigation costs, and economic damages. Taxpayers would cover costs under the federal government’s Judgement Fund.
“There’s enormous incentive for companies to litigate, because they could win billions of dollars in taxpayer money and settlements,” Symons said. “It’s a win for corporate lawyers; a far-reaching rebalance of the relationship between corporations and the agencies that are supposed to regulate them.”
Jane Flegal, senior fellow at Searchlight Institute who supports the bill, wrote on X that she doesn’t expect this to trigger a flood of lawsuits. The ability to challenge a permitting pause on specific energy technologies is a deterrent for an administration, she said.
“It is meant to deter what Trump is doing to wind right now. If your plan is to do that to oil and gas next time, sure, I get why you don’t like §1402,” she said, citing a section of the project certainty title. “But that’s a really bad plan.”
She added that clean energy companies need permits, not a years-long fight over intent and statistics. Most developers will take advantage of other tools in BAAJA, such as faster deadlines for reviews under laws like the National Environmental Policy Act, Endangered Species Act, and Clean Water Act.
For more from Jane Flegal on the response to the permitting bill, listen to this recent episode of Open Circuit:
But still other project certainty provisions alarmed Symons. He pointed to language barring federal agencies from taking action against projects that already have permits, including preventing their construction or “operation at full capacity.” There are exceptions, such as if a company violated the terms of its permit or an agency needs to prevent substantial harm to life, property, national security, or defense. That harm must be identified based on new information not outlined in an initial review.
Symons argued this could create a legal shield around existing coal, gas, and petrochemical plants against future regulations that limit pollution or set stricter water quality standards, for example.
Reining in environmental lawsuits
The Sierra Club raised similar concerns about changes to bedrock environmental laws like NEPA, CWA, and ESA.
“BAAJA does not just contain mere procedural adjustments,” the group wrote. “It includes the hollowing out of court authority, ever-higher burdens for states to protect their natural resources, and far-reaching consequences for the ability to govern energy infrastructure in the future.”
The Sierra Club, along with NRDC and Earthjustice — all of which frequently sue oil and gas companies and the federal government over environmental permits — pointed to provisions that limit federal courts’ ability to halt a construction, regardless of whether an environmental review is deemed deficient, as particularly problematic.
Proposed changes to the Clean Water Act also limit states’ and Tribes’ ability to demand greater protection of local water quality. For example, they would be required to demonstrate harm — a greater burden of proof than current law — when denying an energy project. And their reviews of pipelines and transmission projects would be limited to “direct discharges” rather than broader effects on waterways like erosion, contaminated runoff, and groundwater pollution, NRDC said.
Proponents of BAAJA counter that federal permitting delays and lawsuits disproportionately harm clean energy and transmission projects compared to fossil fuel projects, in part because they often span larger parcels of land.
Independent analysis on the way
A lot of the debate is rooted in a potential worst-case scenario for environmental groups’ priorities. What’s missing, however, is independent analyses on the legislation’s projected impacts.
But not for long. Nonpartisan think tanks including the Rhodium Group and Resources for the Future are working on their respective modeling of the BAAJA’s emissions and economic implications. Their work isn’t yet public, but Kevin Rennert, director of RFF’s federal climate policy, shared an early summary with Latitude Media.
He said the deal would deliver a net benefit for clean energy over fossil fuels, which in turn would reduce emissions through 2041 compared to the status quo policy baseline. That’s due to the buildout of more long-distance transmission lines and faster interconnection queues — both major bottlenecks to bringing clean energy on the grid — and greater certainty that federal permits will be upheld after being issued. More gas infrastructure will come online, too, just not as much compared to a world without BAAJA. The system-wide costs of delivering electricity would also drop between 4% and 8%, Rennert said.
“What happens in the early part of the modeling period is that clean energy ends up displacing fossil energy,” Rennert said. “We see that the U.S. meets the same amount of demand while displacing coal and some gas generation.”
Rennert noted that RFF’s power sector model, developed by the National Laboratory of the Rockies, can’t account for some of the unintended consequences that green groups have pointed to related to project certainty, for example. It also doesn’t factor in the boom in behind-the-meter gas generation that data centers are building.
McKibben in an email told Latitude Media that he worries about those caveats, “which seem large enough to steer an oil tanker through.” He also noted that permitting reform could speed up the construction of LNG terminals facilitating the export of U.S. gas overseas, projects that the Biden administration had paused in 2025 but which Trump quickly unpaused. McKibben on Substack also said his opinion may be “damaged by too many years fighting these wars — perhaps I hate the fossil fuel industry too much.”
“And of course the bill may still be amended to fix its deficits — that’s what [Sen. Sheldon] Whitehouse pledged when he unveiled it last month,” he added.
Still, it’s not just environmental groups demanding changes. The attorney generals from nine Democratic-led states sent a letter to Senate leaders this week requesting a meeting, stating that without amendment, BAAJA would “unnecessarily intrude upon states’ rights, harm critical resources in our states, and create uncertainty in ways that undermine the purposes of the bill.”
Utilities and state utility regulators have yet to endorse the compromise either. And groups representing Tribal nations — a key constituency of Sen. Martin Heinrich (D-N.M), ranking member of the Energy and Natural Resources Committee — are organizing opposition to proposed changes to the National Historic Preservation Act.
Meanwhile, House Democrats, including California Reps. Jared Huffman and Ro Khanna, argue their party should wait and see what happens during the midterms because their party could gain control of both chambers of Congress, and subsequently push for a better bill.
But House Speaker Mike Johnson today told Punchbowl News that he supports BAAJA, boosting the chances the bill comes up for a vote before the end of the year.
