By Krystian Lahage, Public Policy Officer
A new bill before Congress represents the most significant legislative attack on environmental law in recent history. Its passage would fundamentally hamper and alter the way conservation works in the United States.
The Bipartisan American Affordability and Jobs Act of 2026 (BAAJA) was drafted shortly before this year's midterm elections by a bipartisan group of senators. Now, Congress is working to advance the bill before the newly-elected Congress takes office.
On its surface, this legislation addresses affordability and clean energy needs by reducing permitting requirements and reducing red tape. Its support by a small group of bipartisan senators is similarly disarming.
In reality, BAAJA gives major concessions to energy companies by eroding bedrock environmental laws, including ceasing Tribal consultation, removing legal and public recourse to bad projects, and leaving communities open to a broad range of projects, including data centers.
How did we get here?
Over the past two years, the federal administration has introduced dozens of executive and secretarial orders aimed at reshaping the way federal agencies interpret laws like the National Environmental Policy Act (NEPA), the Endangered Species Act, and the Clean Water Act. While these reinterpretations have been harmful and stray far from more than a half-century of conservation policy consensus, they have not been codified by congress. In other words, many of the changes up to this point could be easily reversed by a new administration.
BAAJA would codify some of the most environmentally destructive policies put forward over the last two years and fast-track development projects by reducing stringent permitting processes.
Eroding bedrock laws
The foundation underpinning BAAJA is the erosion of bedrock conservation laws including the Endangered Species Act, National Environmental Policy Act, and the National Historic Preservation Act.
With this administration’s previous rollbacks to the Endangered Species Act’s interpretation of “harm” to listed species, BAJAA will make it harder for judicial review and public input to stop bad projects when they go through National Environmental Policy Act review. Plaintiffs against such projects must allege “actual or imminent injury amounting to direct harm”, despite the fact that indirect harm to habitats has qualified as harm for decades. Habitat destruction and fragmentation are among the top pressures on threatened and endangered species.
Under BAAJA, Tribal sovereignty and consultation face attacks as well. The legislation would make it easier for federal administrations to waive required Tribal consultation that ensures cultural histories are protected and that the people living in these places since time immemorial have a say in how the land is managed.
Streamlining permitting
Means of recourse are limited by BAAJA too. In line with the current administration's sidelining of scientists and subject matter experts, this legislation would significantly limit the use of new data and science during the permitting process. That means emerging information on new development projects like data centers cannot be considered while evaluating permits.
Once approved through this less stringent permit process, projects will become nearly irrevocable. BAAJA weakens the final backstop of litigation against non-compliant projects by introducing moving goalposts for when and how legal cases can be brought and what relief judges are authorized to grant. For example, the law prohibits judges from granting injunctions in National Environmental Policy Act and National Historic Preservation Act cases, even if federal decision-making did not follow legal guidelines.
Too broad, too permissive, and too deferential to industry
There is no doubt that our communities are in need of affordable housing and improved infrastructure. However, legislation attempting to address this need should not create a false choice between affordability and responsible environmental stewardship. The health of our ecosystems is intrinsically tied to the health of our communities.
BAAJA limits the public’s ability to participate in these decisions and to challenge federal approvals in court. Communities that will live with the consequences of these projects deserve a voice, not fewer opportunities to be heard.
BAAJA is simply too broad, too permissive, and too deferential to industry to truly serve the needs and interests of the public.
There is still time to address the most problematic aspects of BAAJA. Senators voted to start debate on the bill before it receives a floor vote and advances to the House. This could take place before new members of Congress are sworn in. We have only a short window to ensure our representatives understand the extent of lasting damage this bill would introduce. Please consider using our action alert to send a message to your Senator today.