Congress may soon rewrite a key piece of environmental law without knowing what it does. A comprehensive deal to reform federal permitting will likely include changes to Clean Water Act Section 401—the provision that grants states and Tribes authority to certify, block, or impose conditions on federally permitted activities that may result in a discharge into state or Tribal waters. The trouble is that the most important decisions made under Section 401 are fragmented across states, buried in agency files, and often folded into other Clean Water Act permitting regimes. Lawmakers are poised to fix a program they cannot actually see.

That blind spot matters because the politics here are genuinely contested. In 2016, New York state began to use Section 401 to block gas pipelines partly on climate change grounds. The law gives states broad deference on what they may consider, and New York also cited water quality impacts.Republicans and their stakeholders argue the rejections were “wholly unrelated to water quality.” Section 401 also implicates dam re-licensing, which can drag on unresolved for years. These are the fights driving reform. Yet there is no comprehensive data to inform whether existing challenges reflect a pervasive national problem or just a narrower set of high-friction cases concentrated in particular sectors, states, or agencies.

The fix isn’t a maximalist archive of every certification document. Sound analysis requires clean, high-level data that lets us see and understand Section 401 decision-making—the kind of information that reveals the scale and scope of repairs the program actually needs.

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Two policy problems, no evidence

Two issues dominate the Section 401 debate. First, the one-year time limit on certification has proven difficult to implement in certain high-profile circumstances. States and project sponsors have exploited loopholes to circumvent it, and the practice has emerged as a stalling tactic states can deploy for disfavored projects. In the Hoopa Valley case, California and Oregon strategically withdrew and resubmitted the same certification request for over a decade, thereby usurping “FERC’s control over whether and when a federal license will issue.” A politically contentious transmission line or pipeline can involve multiple state authorities—and multiple opportunities to game the timeline.

The court ruled the withdraw-and-resubmit scheme illegal. But the facts of Hoopa Valley may not reflect a widespread trend; dams and pipelines may be the only true friction points. That distinction matters for the remedy. The SPUR Act, for instance, would transfer water quality review to FERC—but that solution may leave other problems in place with other types of projects.

The second concern is that states sometimes use Section 401 to block projects because they oppose fossil fuels. Republican stakeholders cried foul when New York used climate change as the reason for denying certification to multiple natural gas pipelines, arguing that climate change is not a water quality impact resulting from a discharge. But without proper data, it’s difficult to say whether state objections unrelated to water quality are large or small. While there are anecdotal cases of Section 401 being leveraged to oppose projects on grounds like climate, noise, or traffic, anecdotes are insufficient to inform our policy options.

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What the records actually look like

The Clean Water Act hands states and Tribes the job of administering Section 401, which means no centralized federal repository exists to track certifications. To see what studying the program would actually require, the authors sought records through the public records process in four states where Section 401 sat at the center of pipeline fights. The results illustrate the structural barriers to building any comprehensive dataset.

In West Virginia, the disputed certification for the Mountain Valley Pipeline yielded extensive litigation and drastically higher costs—a project initially estimated at $3.5 billion ran nearly $10 billion, and Congress had to intervene by statute to force it to approval. Yet the state’s files lacked searchable metadata on applicants, timelines, project characteristics, or outcomes. It was even unclear which documents were certifications. Obtaining the full record required labor-intensive downloads of thousands of documents.

In New York—home to the climate-based denials at the heart of the national debate—certification records are dispersed across nine district offices. The agency determined that producing all certifications and applications would be too time-consuming and therefore infeasible, offering only a subset of denial records instead. The authors made their initial request in December 2025; after repeated delays, they had not received the records.

Massachusetts shows how Section 401 reshapes projects without an outright denial. In 2016, the state certified Tennessee Gas’s Connecticut Expansion Project with 47 conditions, including a requirement that the company convey 36 acres of forest, wetlands, and open fields to offset 4,792 square feet of wetland fill. Conditions like these avoid the conflict of a denial or lawsuit but add costly, time-consuming demands—and the underlying data is not publicly available. The state estimated nearly $1,500 to fund 60 hours of staff search time to produce its records.

In North Carolina, the Atlantic Coast Pipeline demonstrates how the program can shape outcomes even without a formal denial. After certification was issued, a coalition petitioned to revoke it, citing newly discovered impacts on the Lumbee community and inadequate analysis of cumulative water quality effects. The agency did not publicly act before Dominion and Duke canceled the $8 billion project in 2020. North Carolina keeps a publicly accessible database—but the files have no metadata, are organized in county folders, and consist of handwritten documents, emails, and other paperwork, making them unsearchable and unusable.

Despite maintaining records, none of these states could readily provide information suitable for systematic policy analysis. Program administration is fragmented across states, Tribes, and territories with varying resources and priorities, which makes national analysis effectively impossible. A few well-resourced states do better—Colorado offers an interactive map, Illinois clear legal information—but the performance of a few states cannot substitute for a functioning national system.

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The cost of guessing

The practical consequence of this vacuum is that policymakers base their decisions on anecdote rather than evidence. Critics frequently cite New York’s handling of the Northeast Supply Enhancement pipeline as an example of a state obstructing interstate energy infrastructure. But without systematic data on denial rates, approval timelines, and certification conditions, there is no way to know whether that case is representative or exceptional. We are debating reforms to a program we cannot empirically describe.

And the reform options on the table respond to very different diagnoses. Congress could narrow the statute to exclude non-water-quality considerations and tighten timelines. It could transfer pipeline certification authority to FERC, as the SPUR Act proposes. Or it could create a separate, faster certification track for pipelines. If delays and overreach are concentrated in pipelines and dams, sector-specific reform may be enough. If non-water-quality considerations appear broadly, a general statutory narrowing may be warranted. Without data on denials, timelines, conditions, project types, and agency practices, Congress cannot know which reform would solve the problem, which would leave dysfunction in place, and which might create unintended consequences.

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A fix that respects state authority

The natural worry is that a federal reporting requirement could intrude on state authority. Under the anti-commandeering principle—set by the Supreme Court in New York v. United States and Printz v. United States—Congress cannot compel states to administer a federal program, and EPA likely cannot impose such a requirement through rulemaking alone.

But the Clean Water Act already contains the answer. The NPDES permitting program pairs standardized reporting with program authorization: a state that chooses to run the program accepts federal reporting standards as part of the deal, and for states that decline, EPA administers the program directly. Section 401, by contrast, grants certification authority with no corresponding reporting obligation, leaving the program’s most consequential decisions opaque. Congress likely has authority to amend Section 401 to require standardized reporting as a condition of participation—and EPA, which already defines what certifications must protect and operates analogous national databases, is the logical home for it.

The reporting itself would be modest: application and decision dates, outcome, the type of underlying federal permit, whether conditions were standalone or embedded in another permit, general project category, and high-level classifications of any conditions imposed—each paired with a link to the underlying record. This would make Section 401 decisions visible and comparable without constraining substantive state authority, and it would be ripe for AI-driven analysis.

Congress may need to make choices on Section 401 before comprehensive data is available. That doesn’t diminish the case for future-proofing decision-making against guesswork. Permitting reform is a long-term, iterative effort across many statutes—better to have data informing decisions along the way. The success of reform may ultimately depend on whether its effects are measurable. Congress shouldn’t continue to regulate in the dark.

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As Congress revisits permitting reform, proponents are clearing the path of obstacles. Lessons from the demise of the Energy Permitting and Reform Act (EPRA) of 2024 are in the spotlight. A March 2026 piece by the Breakthrough Institute (BTI) argues that EPRA failed in part because some utilities read its transmission provision as a vehicle for “stealth deregulation” of power generation, and warns that the next permitting package will fail the same way unless transmission reform is decoupled from deregulatory efforts. The piece makes two further claims: that deregulation has not delivered on its promises and that mandatory interregional transmission expansion is bad policy.

BTI is right that permitting reform is overdue, that side agendas can derail otherwise valuable proposals, and that the political coalition needed to pass anything is fragile. We share these premises and the urgency behind them. Diverse agendas ranging from reshoring manufacturing to fostering artificial intelligence (AI) development to reducing power sector emissions and enhancing grid reliability all require an ability to get things built.

We disagree, however, that transmission reform is a stealth deregulatory effort and disagree with their characterizations of industry restructuring and interregional transmission. Further, transmission and permitting reform are substantively compatible and politically complementary, as coalitions pairing the two have gained steam over the last three Congresses.

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Stealth Deregulation: A Category Error

BTI’s description of the “stealth deregulation” effect is perplexing. It correctly identifies that greater physical ties between regulated utility regions and deregulated regions would expose “utilities to the argument that lower cost imports should displace new local investment” and that “this would not definitively lead to deregulation.” BTI claims that this would allow ratepayer advocates to make the case for utility trading with external generators and to integrate with competitive markets. This is true and desirable—it results in gains from trade—but this does not equate to generation deregulation. In fact, the wholesale markets in the Midwest, Plains, and those emerging in the West primarily consist of vertically integrated, cost-of-service utilities. Indeed, nearly half of the states in the US’s largest electricity market, PJM, are composed of vertically integrated, cost-of-service utilities. Transmission expansion and better generation coordination in these regions enable rate-regulated monopoly utilities to serve their customers at lower cost.

BTI’s “stealth deregulation” argument frequently treats wholesale market integration and supply deregulation as a single phenomenon. They are not. Supply deregulation, better known as restructuring, refers to reforms that make power generation and retail supply subject to competitive markets. Organized wholesale electricity markets are necessary to facilitate competitive supply, but they can also exist to improve trading between monopoly utilities. Further, even in states where retail supply has not been deregulated, wholesale competition exists with or without organized wholesale markets. Wholesale customers, such as coops and municipalities, are not subject to retail market designs determined by state policymakers, and they and their customers additionally benefit from cost-effective transmission integration.

Such confusion is common. It prompted the R Street Institute’s paper on electric paradigms, which identifies three basic models: traditional monopoly, fully restructured, and the hybrid that most states use—competitive wholesale markets with predominately monopoly generation and retail. For example, the majority of the Southwest Power Pool and Midcontinent Independent System Operator wholesale market footprints are regulated monopoly states totaling half of U.S. states. Western wholesale market expansion, and prospective expansion in the Southeast, are projected to have the same composition. Better transmission ties have value across all three paradigms.

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As of June 4, 2026, Antares Nuclear’s Mark-0 reactor became the first reactor in the Department of Energy’s Reactor Pilot Program to reach criticality at the Idaho National Laboratory. Antares is one of 11 companies taking part in the Pilot Program.

These reactors are not gigawatt-scale commercial plants, but they are essential first-of-a-kind demonstrations. Done well, the program can generate the data, operating experience, and regulatory lessons that help clear the path for commercial advanced reactor deployment. It fills the gap in the prototyping stage of the innovation cycle—a stage that is crucial for the U.S. to succeed. That Antares has been able to reach criticality a full month before the July 4, 2026 deadline established for the program is a welcome indicator of the program’s potential success.

Why Prototypes Matter

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Note from the editors: We’re making a few changes at The Ecomodernist. To date, we’ve kept each and every piece free to all readers. Starting soon, we’ve decided to put some of our content behind a paywall while lowering our monthly and annual subscription fees by half.

Most of the paywalled content will be what we are calling “Breakthrough Deep Dives.” These pieces will take on more technical topics, and provide readers with background context, and clear arguments written by Breakthrough Institute analysts. We will also be publishing more monthly paid-only content such as reading lists, staff profiles, and more.

The Ecomodernist remains committed to publishing novel analyses that help to construct a better environmental politics for the 21st Century. Paywalling some of our content can help support our work and take advantage of Substack’s promotional algorithm.

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On May 1, the Nuclear Regulatory Commission (NRC) released a proposed new licensing framework—Part 57—for microreactors and other designs with very low potential offsite consequences.

The proposed rule closely follows the release of the final Part 53 rule that establishes a technology-inclusive licensing framework aligned with advanced reactor technology and modern risk analysis. Part 53 represents a transition away from purely deterministic regulation—such as earlier licensing frameworks like Part 50 and 52 that regulated the construction of large reactors—but is not a risk-informed, performance-based approach.

Part 57 differs from existing NRC rules because it works as a pathway for reactors that first satisfy restrictive entry criteria. The rule is built around the idea that some reactors are small enough, simple enough, and low-consequence enough that applying the licensing structure developed for large commercial power reactors may add cost and delay without adding commensurate safety value.

But Part 57 would not be a universal shortcut for new reactors. Proposed reactors must clear two gates before accessing streamlined licensing. First, applicants must show, with reasonable assurance, that an individual in the unrestricted area following an accident would not receive more than 1 rem total effective dose equivalent for the duration of the accident. Second, the reactor must have a total inventory of thorium, uranium, and plutonium—i.e. nuclear fuel—less than 10 metric tons.

The proposed rule could represent the first attempt by the NRC to create a licensing framework proportional to the safety risk of a proposed reactor. Proportional regulation is the right goal for the NRC, but Part 57 can only achieve that if the Commission can justify its entry criteria, explain its operational assumptions, and make its framework internally coherent.

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