Yes, the Permitting Bill Really Could Lock in Illegal Permits

The Bipartisan American Affordability and Jobs Act (BAAJA) is, and should be, a major issue for energy and environment lawyers right now. The bill is over 400 pages long, and most people who are talking about it haven’t actually read it. We have, and we’ve posted our full analysis here.  

In this post, I want to focus on the project certainty and the National Environmental Policy Act (NEPA) provisions a bit. A lot of people who aren’t lawyers, let alone permitting or NEPA experts, have been saying things that are misleading at best. I’ve litigated NEPA cases at DOJ and from my perch at Earthjustice. Here’s how I see things: 

First, on the NEPA vacatur provisions, John Podesta (a lawyer and a Beltway player) got it right when he said the bill puts “a lot of restraint[s] on the ability to get courts to enjoin for NEPA violations.” But as is typical, he was being modest.  

Here, Podesta was talking about Section 1110 of BAAJA, which says that “the only remedy the court may order to redress [a NEPA] violation is to remand, without vacatur or issuance of an injunction, the applicable order to the agency.” Translation: The court cannot order the project to stop, because would require an injunction. And it cannot invalidate the permit, because that would require vacatur. All the court can do if an agency does a shoddy NEPA analysis on the second go-round is send it back for a third (or 11th) go around. It’s hard for me to see what incentive any agency has to comply with NEPA, or why any project proponent would turn over any information about its impacts or alternatives. 

Podesta also says that the bill hands President Trump a “loaded Howitzer to go after public lands, to permit stuff that even if it’s illegal can’t be reversed by the courts.”  

Here, Podesta was talking about Section 1401 of BAAJA, which applies to “projects or actions with non-federal sponsors” (that is, anything besides a project of the federal government). This provision goes far beyond NEPA. For covered projects, the federal government cannot “rescind, withdraw, terminate, suspend, amend, or alter a Federal authorization or permit in effect on or after September 16, 2026, or take any other action to interfere with or prevent the construction or operation at full capacity of a project that has secured all necessary Federal authorizations and permits actions that might indirectly impact the economic viability of a project.”   

This provision is intended to stop a new government from undoing the actions of a prior government. There are some narrow exceptions to this for fraud, urgent risk to life or property, and breach of the permit’s terms. But, as we’ve pointed out in our analysis, “these exceptions are quite narrow, and none of them cover a situation in which a future administration concludes that a prior administration violated federal laws (e.g., the Clean Air Act) in issuing a given permit or authorization.”  

Recently, some folks have disputed that analysis, pointing at Section 1401(b)(1)(A), which allows the government to modify a permit to comply with a court order. These folks argue that the subsection creates a back door for the government to terminate illegal actions by a prior administration.  

I wouldn’t bet on that. How would the government go about getting a court order to require itself to do something? Sue itself? (DOJ doesn’t do that.) In addition, seeking a court order would seem to violate 1401’s bar on “any… action” that might interfere with the project. And finally, BAAJA gives the project extensive rights and incentives to sue the government for interfering with a project.  

Could public interest litigants challenge all the illegal permitting decisions we expect from this administration? Maybe, but we don’t have anywhere near the resources required, and this legislation is explicitly aimed at making our challenges much harder to bring.  

So, yes, Podesta was right to predict a rush of permitting “like you’ve never seen” with the Trump administration “not really caring about whether they’re going through the legal steps to do it, and under this bill, those can’t be reversed.”