On September 30, 2026, several senators from both major parties rolled out a 417-page piece of legislation that if passed would change the national landscape of environmental protection. The bill contains major rollbacks of protections in the Clean Water Act, the Endangered Species Act, the Federal Power Act, and the National Environmental Policy Act.
The bill is entitled the “Bipartisan American Affordability and Jobs Act of 2026“. Its purported overarching purpose is to expedite construction of major energy infrastructure, in particular pipelines and electric transmission. Much of the impetus for the bill is projected energy demand for new Artificial Intelligence data centers.
One of the present major bottlenecks for the construction and new energy projects is the current federal administration’s executive rescission and defunding of planned renewable energy projects. This bill would partially solve this real but temporary problem by preventing some rescission of energy projects by the executive branch. In exchange, this bill would permanently weaken a suite of foundational environmental laws.
The bill accepts the conservative framing that regulation is the primary factor that prevents and/or delays the development of energy infrastructure. It comes at a time when administration policy has escalated the costs of such development. Trade policy has substantially increased the cost of foreign-sourced construction materials. Foreign policy has helped bring the cost of diesel to an all-time high. In addition, the rapid growth of artificial intelligence centers with little regulatory restraint has become a national political issue, particularly in rural areas.
It is difficult to understand the urgency of passing this bill, or the logic of passing it at all, considering how much of it responds to what may well be short-term policy decisions.
Here are some, not all, of the worst elements of the bill, with relevant sections and page numbers noted.
Chokes Section 401 of Clean Water Act
Section 401 of Clean Water Act allows states to deny federal permits or licenses that don’t comply with state laws regarding water quality. Alternatively, states can issue “water quality certifications” that place mandatory conditions in federal permits or licenses to assure compliance with state water quality laws. This statute affects hydropower licensing, construction of pipelines, and electrical transmission, among others.
The bill would add subsections to section 401. The new subsections would restrict the states’ scope of review, limit reasons for denial, and add a burden of proof for the states that only “clear and convincing evidence” is cause for denial or the rationale for a condition in a certification. Section 1202 of the bill would:
- Require that water quality certifications be “‘‘(III) consistent with the requirements of the Federal license or permit for which the certification application was made.” [Section 1202 (e)(2)(B)(ii)(III), p. 103.]
Why this matters: Under current statute, states can issue conditions that are more protective than similar measures proposed by federal agencies. Federal agencies cannot limit or change conditions in a certification. This language makes federal action a limitation on what states can require.
- Limit the scope of certifications to discharge of pollutants. Under existing statute and precedent, states can include conditions in certifications to protect “designated uses” and to assure compliance “and with any other appropriate requirement of State law.”
However, the bill states: “The scope of a certification provided under this section shall be limited to ensuring compliance with water quality requirements.” [Section 1202(e)(2)(A), p. 104.] Later, the bill provides a definition: “(3) WATER QUALITY REQUIREMENTS. —The term ‘water quality requirements’ means—‘‘(A) the applicable provisions of sections 301, 302, 303, 306, and 307; and ‘‘(B) any Federal and State or Tribal laws (including regulations) implementing sections 301, 302, 303, 306, and 307 that are applicable to discharges into waters of the United States.’’ [Section 1202 (h)(3)(A) and (B), p. 122, emphasis added.]
Why this matters: Section 303 of the Clean Water Act is the only section cited in the excerpt above that deals with designated uses. These uses include recreational uses such as fishing, swimming, and boating. These uses also include protection of fish spawning and migration. But the bill limits “water quality requirements” to sections of the Clean Water Act “that are applicable to discharges,” not uses. Under this interpretation, certifications could no longer require river flows or facilities that support such uses as boating or whose purpose is to support the life stages of fish.
Even if this interpretation is not correct for all certifications, there is a specific carve-out for interstate gas pipeline projects and electric transmission line projects that explicitly limits certification to conditions such that any “direct point source discharge” from these facilities “complies with water quality requirements.” [Section 1202 (g), pp. 118-119.]
- Increase the burden of proof for states to justify denials of certification or conditions in water quality certifications. States must justify with “clear and convincing evidence” that there were no measures that would have avoided denial, and that any conditions are the “the least burdensome condition or set of conditions for avoiding violation of water quality requirements…” [Section 1202 (f), p. 117.]
Why this matters: This provision creates open season for any permit or license applicant to contest and/or litigate any decision about certification. It changes a presumption of state expertise to an almost impossible standard that requires a state to show that every condition in a certification is the least expensive and least difficult possible solution to an issue concerning water quality.
Doubles the Duration of a National Pollutant Discharge Elimination System (NPDES) Permit
Entities that discharge pollutants into waters of the United States from a specific point (called a point source) must get a National Pollutant Discharge Elimination System (NPDES) permit. Some entities operate under “general permits” that apply to many dischargers. Others have individual permits for specific facilities. NPDES permits set limits on how much of each identified pollutants each permit holder can let enter rivers and other waters.
Currently, under the Clean Water Act (40 CFR § 122.46), both general and specific NPDES permits have a maximum duration of 5 years.
Section 1203 of the bill would double the duration of an NPDES permit to ten years. [p. 123.]
Why this matters: NPDES permits hold businesses and public entities accountable. They keep the pollutants that get into waterways within strict limits. This provision would cut the frequency of regulatory review in half. It would double the amount of time inadequate permits could allow water pollution without the accountability required in permit renewal.
Carves Holes in the Endangered Species Act
Under existing law, Section 7 of the Endangered Species Act (ESA) requires an agency that is evaluating a proposed a discretionary federal action to consult with the responsible federal agency (usually, the U.S. Fish and Wildlife Service or the National Marine Fisheries Service) to avoid harm to species listed as threatened or endangered under the act. Section 7(a) requires the consultation. Section 7(b) requires the “opinion of the secretary”; i.e., a “biological opinion.” Section 7(c) requires the proponent to prepare a “biological assessment” as the factual basis for the consultation and the opinion.
The Trump administration has recently implemented regulatory rollbacks in the implementation of the ESA. This bill would add to the rollbacks, and enshrine some rollbacks in statute.
Section 1304 of the bill would:
- Establish a new section 7A of the Endangered Species Act. It would create a new pathway for consultation in which states could apply for authority to assume the role of ESA consulting agencies under section 7(a) formerly reserved for the U.S. Fish and Wildlife Service under the Department of the Interior. A state could consult on only on federal actions that would occur entirely within the state. [Sections 1304(a)-(d), pp. 137-147.]
Section 7A would establish a vetting process for interested states to apply for status as a consulting agency. It would require participating states to adopt regulations that govern consultation.
Why this matters: Many states are controlled by conservative politicians who seek to limit regulation in principle. Thus, many states are likely to limit protections for endangered species. Additionally, states do not have a trust responsibility for Indian Tribes. Transferring consultation authority to states would eliminate a requirement for the consulting entity to conduct direct, government-to-government consultation with affected Indian Tribes in the course of the ESA consultation.
- Require a state to accept the jurisdiction of a federal court over decisions of the state agency in its role as ESA consulting agency. Section 7A(e) would require states that conduct ESA Section 7A consultations to litigate any legal challenge to the product of a consultation in federal, not state, court: “‘‘(e) JURISDICTION.—‘‘(1) IN GENERAL.—The district courts of the United States shall have exclusive jurisdiction over any civil action against a State for failure to carry out any responsibility of the State under the program.” [Section 1304(e)(1), p. 147.]
Why this matters: Requiring a state to accept the jurisdiction of federal courts diminishes state sovereignty and would require a consulting state entity to defend a biological opinion in a legal venue outside its normal expertise.
- Allow an applicant for a permit or license to choose the regulator with whom it wants the federal agency to consult. An applicant for a license or permit may require the federal agency to consult with the Department of the Interior rather than an applicable state: “PERMIT OR LICENSE APPLICANT ELECTION.—Notwithstanding a State assumption of responsibility under subsection (b)(4), a permit or license applicant may elect to consult with the Secretary within the boundary of the State under subsections (a), (b), and (c) of section 7. [Section 1304(f)(2), p. 148.]
Why this matters: This provision creates statutory venue shopping. A license or permit applicant gets to choose where it will get the better deal: from the federal government, or from the state where a project is proposed.
Weakens a Key Safeguard in the Federal Power Act that protects national forests and lands managed by the Bureau of Land Management
Section 2232 of the bill’s Hydropower subtitle limits the authority of the Department of Agriculture’s Forest Service and the Department of the Interior’s Bureau of Land Management under the Federal Power Act. Section 4(e) of the Federal Power Act (16 U.S.C. 797(e)) allows the Forest Service and BLM place mandatory conditions in hydropower licenses to protect “reservations” that they manage, generally national forests and BLM-owned land. FERC must accept these conditions and include them in hydropower licenses.
- Current language in Section 4(e) states that hydropower licenses “shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation.” Section 2232 would add language at the end of that sentence, limiting what the Forest Service or BLM could deem necessary by adding “and are reasonably related to the effects of the project.’’ [p. 354.]
Why this matters: The added language would make an entity other that the Forest Service or BLM the decider of what is “reasonably related to the effects of the project.” It could be a judge in a courtroom. It could even be FERC, which would overturn the mandatory nature of 4(e) conditions in licensing. The legislation itself is confusing because it doesn’t say who decides. Applicants for hydropower licenses are certain to litigate the meaning in court after advocating before FERC. This section, like others, is likely to increase litigation.
Undercuts the National Environmental Policy Act by limiting court review and remedy
The National Environmental Policy Act, widely known as “NEPA,” requires disclosure of the environmental effects of an action by a federal agency. It also requires analysis of alternatives to the action (often called “the heart of NEPA”). Since NEPA’s creation in 1972, a judge can require a federal agency to reconsider its decision on a federal action if a court finds that the agency’s NEPA analysis of the action is inadequate.
Section 1106 of the bill would limit what alternatives an agency must analyze, would limit what any person or entity could challenge in court, and would limit what could happen if a judge found a NEPA analysis to be legally inadequate.
- The bill would require a federal agency to eliminate from consideration any alternatives that do not ‘‘(I) fulfill the purpose and need of the proposed agency action; and (II) meet the goals of an applicable non-Federal project sponsor.” [Section 1106(a)(1)(C), p. 38.]
- Why this matters: This language allows an agency and a proponent to narrowly define a the purpose and need of a proposed action to eliminate mitigation measures and expenses the proponent does not like. This has always been a tension in NEPA. Recent regulations have narrowed the required range of alternatives a federal agency must analyze. This section would codify a narrow scope of alternatives in statute and put the proponent of an action in the driver’s seat.
- The bill would absolve a federal agency of the responsibility to consider new scientific or technical information that became available in the two years (or less) after the initiation of the NEPA process. [Section 1106(b)(3)(a), p. 43.]
- Why this matters: One could call this the “don’t confuse me with the facts” clause. Scientific and technical information is rapidly evolving. In the past, commenters could call attention to new information during the course of the process and introduce it into the record. No longer.
- Section 1110 of the bill (“Judicial Review”) narrows when any person or entity can file a lawsuit challenging a NEPA document, what they can claim in a lawsuit, and what a judge can do if the judge finds a NEPA document to be legally deficient.
- The bill requires filing of a lawsuit challenging a NEPA document within 150 days after a federal authorization supported by the document is made public. Under current law, parties have 6 years to file suit. [Section 1110(b)(1), pp. 67-68.]
- The bill requires a party to have made a detailed substantive comment on an issue in its own comment letter in order to sue on the issue. Under existing law, a party filing suit can rely on the comments of other to introduce a subject into a lawsuit. [Section 1110(b)(2), p. 68.]
- The bill requires that a lawsuit must be “filed by a party alleging (or has an individual member alleging) an actual or imminent injury in fact amounting to a direct harm.” The requirement to show “direct harm” and “actual or imminent injury in fact” makes it harder to establish standing (a legal basis to sue) than under current law. Current law allows a party to sue based on more diffuse or potential harms such as harms to recreational, aesthetic, or environmental enjoyment of a location. [Section 1110(b)(3), p. 68.]
- The bill limits what a judge can order on finding a NEPA document to be unlawful:
“(A) IN GENERAL.—Except as provided in subparagraph (B) and notwithstanding any other provision of law, if a court determines that an authorization does not comply with the requirements of this Act, the only remedy the court may order to redress that violation is to remand, without vacatur or issuance of an injunction, the applicable authorization to the agency with—
- specific instructions to correct errors or deficiencies found by the court; and
- (ii) a reasonable schedule and dead line for the agency to act on remand, which shall not exceed 180 days after the date on which the order of the court was entered.”
[Section 1110(c)(5)(A), pp. 69-70. Subparagraph B allows the potential for a preliminary injunction “to prevent irreparable harm to the plaintiff” until correction of the issue.]
Further, issuance of a license or permit, or construction, could continue while a federal agency corrects its NEPA document:
‘‘(6) REMANDED ACTIONS.—
‘‘(A) CONTINUED EFFECT OF AUTHORIZATION.—An authorization remanded under paragraph (5)(A) shall remain in effect while the Federal agency corrects any errors or deficiencies found by the reviewing court.
(B) FEDERAL ACTION DURING REMAND.—The activity that is the subject of an authorization remanded under paragraph (5)(A) may, notwithstanding that remand, be carried out, including during the time prescribed by the applicable court to correct the applicable errors or deficiencies.”
[Section 1110(c)(6)(A) and (6)(B), p. 71.]
- Why this matters: This section limits a court to a remand (sending back) a deficient NEPA document to the issuing agency to correct specific flaws. It limits the time to correct to 180 days, regardless of whether, for example, new alternatives are required to correct a deficiency. Most importantly, it does not allow “vacatur” of the authorized action the NEPA document analyzes. A new hydropower license, for example, would remain in effect, and construction of infrastructure could proceed, barring a showing of “irreparable harm to the plaintiff.”
This change severely reduces the importance of environmental review under NEPA. The change makes alternatives and disclosure of impacts a peripheral exercise instead of a central element of any federal action. An agency no longer has to produce a lawful NEPA document in order to issue a license or permit or to authorize construction.
Conclusion
It is unconscionable to trade crippling revisions to the Clean Water Act, the Endangered Species Act, the Federal Power Act, and the National Environmental Policy Act for short-term policy changes that accelerate construction of energy infrastructure.
A two-page summary of this article is here.