The Bipartisan American Affordability and Jobs Act (BAAJA) is scheduled for consideration in the US Senate next week. On the heels of the Democrats’ historic wave election this week, opponents of congressional permitting reform legislation are arguing that the Party would be better off walking away from the bipartisan deal on the table and crafting more Democratic-friendly reforms next year.
The political game theory of this strategy is very dumb, as Democratic negotiators have encouragingly acknowledged since midterm results came in. “This is the closest we have come to actually finding something that can get signed into law, and I’m not going to wait,” Senator Martin Heinrich told Punchbowl’s Joshua Siegel on Wednesday. “We don’t have more years to lose as clean energy projects sit on the sidelines,” Senator Whitehouse said to Politico’s Nico Portuondo. “And there’s no guarantee Congress would ever find another compromise that would be able to pass the Senate.”
And reform opponents are getting the substance wrong too. Critics, like Representative Jared Huffman, who is poised to take over as chair of the House Natural Resources Committee next year, claim that BAAJA would be better for climate and clean energy if it were stripped of its reforms to regulatory statute while keeping the transmission provisions in tact. But as Breakthrough has shown over the past several years, reforms to the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), and the National Historic Preservation Act (NHPA) would benefit clean energy infrastructure.
That reality is becoming impossible to deny. So over the past several weeks, climate and environmental activists have resorted to a series of misleading arguments, cockamamie analyses, and outright bullshit to make the case against BAAJA. Below I’ll cover the most fantastical arguments against BAAJA, as well as the more common, but in most cases no less mistaken, claims made about the law.
Claim: Friends of the Earth claims BAAJA will allow the Trump Administration to build a coal plant in the Grand Canyon.
Reality: Permitting, let alone building, a coal plant in the Grand Canyon would violate the National Park Service Organic Act of 1916, which requires the National Park Service “to conserve the scenery, natural and historic objects, and wild life” of protected areas.
National Parks also face stricter air quality standards under the Clean Air Act than do most jurisdictions, which could inhibit construction and operation of a coal plant even near the Grand Canyon.
This is to say nothing of the practicalities of building a coal plant in the Grand Canyon (in the next two years, no less). Despite a full decade now of President Trump promising to bring back coal, the US hasn’t brought a new coal plant online since before Trump was elected in 2016. If we were to build more coal capacity, it wouldn’t be in the Grand Canyon, which lacks the requisite rail lines, transmission rights-of-way, and proximate electric power consumers.
This argument is a particularly acute kind of bullshit, which we know because activists literally dreamed up the scenario in a strategy session to brainstorm the most inflammatory anti-BAAJA talking points they could come up with.
Claim: The ACLU claims BAAJA “would hand ICE a faster, cheaper path to building out a detention system that has already wasted billions of taxpayer dollars.”
Reality: Since January 2025, the number of ICE detention centers has more than doubled, from 134 in January 2025 to 272 in July 2026 according to the Migration Policy Institute. But there are only a handful of ICE detention centers whose construction or conversion were halted due to NEPA litigation, including one in Maryland, one in Arizona, and one in California.
In other words, environmental review is not a meaningful constraint on the expansion of ICE detention centers. What’s more, it shouldn’t be. NEPA litigation should not be used as a pretextual check against infrastructure projects that activists dislike for reasons unrelated to their local ecological impacts, whether those impacts are carbon emissions outside the scope of the review or detention facilities for the execution of immigration policy activists disagree with.
Critics who complain that NEPA will no longer be available for them to pursue policy goals outside the scope of the statute are telling on themselves, and inadvertently making the case for reform.
Claim: John Podesta claims that the permitting certainty provisions of BAAJA would allow federal agencies to “permit stuff that even if it’s illegal can’t be reversed by the courts.”
Reality: The permitting certainty provisions of BAAJA, Sections 1401 and 1402 of the law, prevent federal agencies from revoking or altering federal authorization of fully permitted projects. But one of the exceptions to this is for permits issued illegally.
BAAJA provides developers recourse for financial compensation in the event that duly permitted projects saw their permits revoked by subsequent administrations. The law would not allow federal agencies to ignore the law in issuing permits, nor bar courts from enjoining those projects if they found the issuing agencies had failed to follow statute and procedure.
Claim: Abigail Dillen claims that BAAJA “would bar consideration of new information and science, while significantly increasing deference to federal agencies to define the scope of their reviews.”
Reality: BAAJA codifies and specifies the timelines for environmental review, statutes of limitations, qualifications for standing in litigation, applicable interventions under judicial review, and the criteria that can be considered before issuing permits. These specifications are necessary after decades of procedural bloat, as agencies have found new ways to expand the scope of environmental review, litigants have engineered new premises under which to sue projects, and courts have pursued winding and inconsistent paths in hearing lawsuits and reviewing permits and other infrastructural legal qualifications.
Dillen’s claim here is another way of arguing that future administrations should be able to unilaterally and retroactively apply new criteria to project permits that met the statutory and procedural requirements at the time they were issued. This is exactly what the Trump Administration is attempting in efforts to consider new-fangled “national security” information in holding up wind power projects, and that the Biden Administration attempted in canceling oil and gas leases to achieve emissions targets and other non-statutory goals.
Claim: Jared Huffman claims “BAAJA increases both GHGs and premature deaths from air pollution.”
Reality: Huffman cites a single academic paper with a bizarre methodology to justify his claim that BAAJA will increase emissions. That paper models real-world 2025 emissions against a counterfactual 2025 in which BAAJA had somehow been passed previously, and in doing so assumes, rather than estimating or concluding, that US oil and gas production will rise, pushing emissions up in absolute terms.
Most other modeling has found that BAAJA is likely to reduce emissions relative to counterfactual scenarios (scenarios that, notably, unfold in the future, not the past, and over many years, not just one year). Resources for the Future estimates that US power-sector emissions will be as much as 15% lower on an annual basis over the next 15 years with BAAJA than without. The Climate Leadership Council estimates BAAJA will reduce power-sector emissions by 13.5% relative to business as usual through 2035. The Rhodium Group found that BAAJA will reduce power-sector emissions by as much as 18%.
Obviously there are a range of estimates here, with a variety of methodologies worthy of interrogation. But the balance of analysis indicates that BAAJA will reduce emissions overall, compared to one paper which simply assumes that BAAJA will increase emissions.
The intuition here is straightforward. Oil and natural gas are demand-constrained—they are the incumbent fuels from which combustion and emissions will decline if and only if demand declines. Low-carbon replacements for oil and gas, by contrast, are much more severely supply-constrained. It’s relatively difficult to permit a solar farm, site the necessary transmission infrastructure connecting load areas to renewable capacity, or license a new nuclear reactor. BAAJA and other regulatory reforms are designed to mitigate these supply constraints on zero-carbon energy.
That’s why BAAJA is likely to unlock far more clean energy capacity than is currently being obstructed by the Trump Administration.
To be clear, BAAJA is likely to benefit oil and gas production as well. But US oil consumption has remained mostly flat for nearly twenty years while production more than doubled—a reminder that consumption and emissions are demand-constrained, not supply-constrained. Natural gas, meanwhile, is likely decarbonizing on most margins. Cheap gas still trades against dirtier coal-fired generation on power markets, new gas pipeline supply would displace dirtier fuel oil and imported gas in regions like New England, and exported LNG would often displace dirtier Russian gas in Europe and much dirtier coal in Asia.
All of which explains why BAAJA’s all-of-the-above reforms are almost certain to augment US decarbonization trends.
Claim: The Climate Justice Alliance claims that BAAJA would “would gut bedrock environmental laws created over half a century ago.”
Reality: BAAJA would curtail, and in some cases consolidate, federal requirements for environmental review and community consultation under multiple regulatory statutes. This is far from a repeal or “gutting” of legacy environmental laws.
It’s important to remember that the specific form that federal agencies have adopted to conduct environmental reviews is a procedural development, not a statutory requirement of NEPA. These reviews have become more sprawling and unmanageable over time, vulnerable to often frivolous litigation brought by activist groups and subject to unpredictable and unconstrained judicial review. BAAJA would expand the use of Categorical Exclusions (itself a kind of environmental review) for certain classes of project, specify the criteria relevant to reviews, permit alternative reviews from states or other agencies to satisfy the review requirement, and establish deadlines for both environmental review and litigation.
BAAJA would also reform public engagement and consultation procedures under NEPA, the NHPA, the ESA, and the CWA. These provisions are intended as clarifications and codifications of procedural best-practice. To describe these reforms as “gutting” or “repeals” of the statutes themselves is willful misinformation.
Claim: The Wilderness Society claims that BAAJA “would sell out our shared public lands to fossil fuel drilling, hardrock mining and AI data centers, silence public input and erode Tribal sovereignty.”
Reality: The opposition to BAAJA from Native American tribes has been exaggerated. While many Tribal interests have voiced their opposition to the law, the largest Native voices have been more nuanced, and even supportive of the infrastructure projects and economic development potentially unlocked by BAAJA. The Coalition of Large Tribes (COLT), which represents over half of Native American people and over 95% of Native Land, has called for narrow amendments to Title III of the law, the provisions governing the National Historic Preservation Act. Other Native groups have gone further, such as the National Congress of American Indians, which called on Congress to withdraw the Title III provisions altogether, while urging Congress to “work directly with Tribal Nations to develop permitting reforms that respect Tribal sovereignty.”
So institutional opposition to BAAJA is coming mainly from the environmental movement. But even the environmentalist opponents to BAAJA are in a state of disarray. As Sophie Gilbert observed in a recent analysis, the majority of the 100 largest environmental organizations in the country are either silent or at least superficially neutral on BAAJA. While figures like Bill McKibben and David Bookbinder, and groups like Earthjustice and the Center for Biological Diversity, have come out guns blazing, organizations like the Natural Resources Defense Council and the League of Conservation Voters appear to be hedging their bets, criticizing the bill while refraining from formal opposition.
Now, the text of BAAJA will likely change in the coming weeks, and the full effect of the law will unfold over time as agencies revise their permitting procedures, as developers plan and consult for projects and conduct environmental reviews, and as the courts interpret the law. Further reforms outside the scope of BAAJA will almost certainly be needed in the coming years, on issues ranging from further consolidation of judicial review, normalization of environmental review across agencies, and reforms to other federal statutes that are implicated in NEPA and broader environmental regulation.
And that’s because the environmental case for permitting reform has become pretty unassailable in recent years. The cost and procedural barriers facing environmentally-friendly technologies and infrastructure, oftentimes due to the very laws intended to protect the environment, have become impossible to ignore. Environmental regulation has become a vehicle for activist litigation and fundraising. Even McKibben and NRDC’s Manish Bapna have expressed supportive, if vague, sentiment for permitting reform in recent years. Environmental groups, from the silent to the supportive, are reckoning with the reality laid out above: that permitting reform is good for developers, consumers, the environment, and the climate.