What lawmakers are calling the “Bipartisan American Affordability and Jobs Act” (BAAJA, S. 5653) will fundamentally change how our government makes decisions about our money, our public lands (yes, including Wilderness), and our participation in those decisions. Call your senators at 202-224-3121 and tell them to oppose S. 5653! Proponents of this permit-reform bill claim that it will “cut through the bureaucratic red tape.” After wading through this 417-page bill, what becomes apparent is that we—you and me and the ecosystems that humanity has yet to devastate—are the “red tape” that proponents would like to bypass. So, maybe all of us should take note of this “red tape” framing and start examining BAAJA from an anti-authoritarian angle. A half-century ago, an entirely different Congress tried to stop the government from leaping without looking because that was destroying the environment and threatening wildlife with extinction. To address this problem, Congress passed the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Clean Water Act (CWA). BAAJA will do an incredibly effective job at removing much of the remaining protective measures that these three laws still have. BAAJA is described as “permit reform,” which simply means it amends environmental laws mentioned above, which agencies must follow when authorizing—i.e., permitting—all projects on public lands or those that use taxpayer money. This isn’t just about energy projects. The bill would amend environmental laws themselves, including any project proposed for public land or that uses a significant amount of taxpayer money. Think of logging projects, fish-poisoning projects, or roadbuilding projects as well as mining projects. Proponents proclaim this will “streamline” how agencies authorize projects. Streamlining, viewed from the other side of the coin, though, is simply removing the legal guardrails that help us prevent our government from doing its worst to our natural world as quickly as possible. BAJA destroys those guardrails. S. 5653 eviscerates much of the rest of NEPA. Despite efforts from all three branches of our government to hollow out NEPA in recent years, the statute still requires agencies to prepare an environmental impact statement for “major Federal actions significantly affecting the quality of the human environment.” To legislate around the inconvenience of an environmental impact statement, S. 5653 ignorantly or maliciously redefines and grossly enlarges categories of activities that our government will no longer consider “major Federal actions.” For example, this past August, a court stopped the construction of an 18-mile stretch of road across the Izembek National Wildlife Refuge and Wilderness. While we fight this on appeal, Alaska decided to construct the beginning of the road on non-Federal land leading up to the Refuge, and is applying for federal money to fund this. Normally, NEPA would require an environmental impact statement if considerable amounts of federal money might fund a road built through wetlands, sensitive habitat, and right up the doorstep of some of our wildest country. If Congress passes S. 5653, however, that obligation goes away because the bill redefines “major Federal action” to exclude federal funding, no matter how many millions of dollars that might be and to what extent that funding could be used to destroy the wild. BAAJA’s proposed NEPA amendments would codify extreme deference to federal agencies when their goal is turning a blind eye to information that complicates their preferred course of action. S. 5653 would release agencies from obligations to consider new science or technical information available after the agency notifies the public that it intends to prepare an environmental analysis, even if the information is relevant, there isn’t a decision yet, or the agency hasn’t even started its analysis. Lead agencies can decide to forgo an environmental impact statement (EIS), binding other agencies involved, even if a cooperating agency considers an EIS necessary for aspects of the project under the cooperating agency’s jurisdiction and expertise. Lead agencies can apply state analyses and forgo their own, which would probably provide an agency-welcomed bypass of public participation in the process. S. 5653 would allow the Federal government to fully embrace the government’s environmental policy of sticking its head in the sand so it remains ignorant as to how its proposals would impact our Wilderness areas and other public lands, making environmentally destructive decisions a whole lot less problematic for them. S. 5653 prohibits agencies from rescinding previous authorizations—no matter how destructive they might be—with a provision called “project certainty.” For an example of how this might look in practice, consider the proposed Ambler Mining Road, a private-proposed road in north-central Alaska that would slice through the Gates of the Arctic National Preserve and cross some of the largest unfragmented wild country on the planet to connect a mine to a highway. In 2024, BLM halted the project because of the environmental impacts. The Trump Administration revived the road authorization in 2025. While S. 5653 applies project certainty to decisions after September 16, 2026 (and does not apply to the current 2025 approval for Ambler Road), authorizations for projects like these moving forward—including a future new decision on the Ambler Road if a court throws out the current authorization—could not be undone or reconsidered by a future administration with less nihilistic environmental values. As a second example, if this administration repeals the 2001 Roadless Rule and the US Forest Service approves a logging project in a roadless area that goes right up to the boundary of a Wilderness area, the agency couldn’t rescind this logging authorization once a logging company bought the rights to the timber. Project certainty is the type of resource extraction guarantee that timber, oil, and gas executives have only dreamed about until now. S. 5653 throws up roadblocks to meaningful judicial review of environmentally destructive or species-endangering projects. For industry and private actors who seek judicial review for agency recissions that they claim trigger the bill’s “project certainty” guarantees, S. 5653 allows the standard time of six years to challenge the agency decisions and puts a high burden of proof on the government to demonstrate that it fell within one of the narrow exceptions to rescind an authorization, like threat to life or fraud. And even for fraud, the bill won’t let the government claw back an authorization for some omissions. If the industry sues the government and the latter can’t produce this high burden of proof, we pay for the industry’s attorney fees, costs of delay, etc. For agency decisions that violate NEPA, the ESA, or the Clean Water Act, however, S. 5653 shortens this six-year window to 150 days for citizen suits. While the bill’s proponents think this is adequate time to ascertain whether a law has been violated, locate attorneys, have those attorneys review the projects for a meritorious lawsuit, and send 60-day notices (which both the ESA and the CWA require), they likely have not had the experience or the lack of resources to understand how tight of a deadline or high of a hurdle this is. BAAJA also predetermines that projects proceed despite illegal processes or even illegal results. Generally, when a court finds that an agency has violated an environmental law in the process of reaching the result, the court throws out the agency’s decision, because a lawful process might result in a different decision—you know, the whole “looking before leaping” idea. But BAAJA would prevent a court from throwing out most decisions that violate NEPA or the CWA, allowing the decisions to remain in place even if those laws were clearly violated in arriving at the decision. BAAJA gives the government 180 days to fix the means (the process) so they can justify the decision that courts must keep. This bill threatens so much more than I can capture in this blog. We never got to discuss how the bill threatens to turn over ESA consultation to the states or how it redefines the “best available science” with a high bar that could exclude the newest research. Wyoming, Idaho, and Montana desperately want to remove ESA protections for grizzlies, using old science even as grizzlies in the Greater Yellowstone Area experienced record deaths this year. Wyoming and Idaho were already planning state-sanctioned hunts during the short time that grizzlies lost ESA protections during the first Trump Administration before a court reinstated those protections. The State of Montana and Wildlife Services just closed a public comment period on a grizzly bear conflict-management plan that dictates when killing grizzly bears is permissible. Currently, Montana and Wildlife Services have to consult with the US Fish and Wildlife Service (USFWS), and the USFWS determines, using the best available science, whether the plan would violate the ESA by jeopardizing the existence of grizzlies. Can you imagine if S. 5653 passed, and Montana assumed consultation with itself on a plan that it developed, using only outdated science and emboldened with the freedom to ignore the newest research? Can you imagine Idaho or Wyoming in charge of protecting grizzlies under the ESA when their starting position is that grizzlies don’t need ESA protections? We certainly don’t have to be clairvoyant to foresee how this would play out for grizzlies. Finally, while I don’t discuss “tone” much when writing about legislation, BAAJA is remarkable on that front. The tone of the language in this bill—from the Republican and Democrat lawmakers who hashed it out—is paternalistic-bordering-on-authoritarian. BAAJA dictates to us what we can’t debate and what—increasingly—the government refuses to consider. BAAJA presumes that all government decisions are good, so they should be hard to challenge and the decision should remain in force, even if laws were broken to get there. BAAJA favors companies that use taxpayer funds for environmentally destructive activities or complete pet projects on public lands so they can achieve their goals quickly, and BAAJA enables eager and complicit federal agencies by throwing up many hurdles to stymy public pushback. BAAJA robs the public of judicial remedies when our government acts illegally while creating taxpayer liability to industries when a federal agency tries to enforce the few exceptions that allow it to rescind a project authorization. Outside of the few exceptions, which are strict and extreme, BAAJA ties the hand of our government if a future version of it grows a spine and decides to actually defend a healthful environment, Wilderness and other public lands, clean water, and biodiversity—you know, the stuff that, when it’s gone, we can’t just buy back. Bills are inherently value-driven. Proclaiming that S. 5653 “cuts red tape” clarifies that the real driving value is to eliminate current environmental protections, which would allow our government to authorize environmental damage with little accountability. BAAJA would be effective on this front, which is why you must call your senators at 202-224-3121 and tell them to oppose S. 5653. Let them know that We the People aren’t red tape to be legislated around. |
