To the Finish Line: Ten Ways the New Senate Permitting Bill is a Boon for Energy Infrastructure

On September 30, 2026, a bipartisan group of senators introduced the Bipartisan American Affordability and Jobs Act of 2026, a comprehensive permit reform package that would implement sweeping changes aimed at streamlining the permitting process and giving greater certainty to project developers. The bill expands on efforts advanced in prior permitting reform initiatives to overhaul the nation’s environmental and natural resources laws at every stage of review, including National Environmental Policy Act (“NEPA”) reviews, Clean Water Act permitting, protected species consultations, and post-permit judicial review. The bill also provides greater certainty for project developers by creating significant remedies for adverse actions against already-permitted projects and other forms of disparate treatment.

Here, we highlight ten ways the bill tries to promote energy infrastructure development, though it was difficult to limit the list to just ten. They touch on these key topics:

1. Taking politics out of the process
2. Stricter NEPA review and decision-making deadlines
3. Expanded fast-tracking and a pass on NEPA for many FERC projects and electric transmission infrastructure
4. Less delay from judicial review
5. NEPA and other challenges straight to Appellate Courts
6. Tighter timelines and limits on Clean Water Act Section 401 reviews
7. Enhanced nationwide permit program for infrastructure
8. Option for state programs to implement Endangered Species Act Section 7 consultations
9. Reformed National Historic Preservation Act processes
10. Streamlining for various energy development approvals

In addition to the many ways in which the bill impacts environmental reviews, it also reforms key aspects of the siting and approvals process for natural gas pipelines and electric transmission and interconnection projects, in part to address growing demands from data centers. We will discuss these matters and more in an upcoming insight.

1. Taking Politics Out of the Process

In perhaps the most evident bipartisan compromise in the draft, the bill offers significant protections for project developers against agencies backtracking and revoking approvals, which has sometimes accompanied changes in administration (as was seen with the Keystone XL pipeline and offshore wind projects). These are designed to make permitting less politicized and ensure projects do not receive negative treatment simply because the type of energy is disfavored by those in power.

• No Adverse Post-Permit Actions: The bill would generally prohibit the government from rescinding, terminating, suspending, amending, or otherwise interfering with project development of fully permitted non-federal projects outside a limited set of circumstances. The government would not be able to use vague claims of national security or environmental harm to stop a project without a specific, urgent need based on new evidence.
• Remedies for Adverse Actions: If the government does take action against a fully permitted project, the bill provides the permittee with a cause of action that places the burden of proof on the government, and if the government loses in court, the applicant could recover various damages, including delay costs and 25 percent to 50 percent of the project’s costs incurred to date, based on factors like bad faith and the government’s pattern of interference.
• No Disparate Treatment: The bill declares the “sense of Congress” to treat all energy projects fairly. If a permittee can show that the government improperly denied or unduly delayed a permit or authorization due to a pattern of disparate treatment against a category of energy projects, the government may be required to pay 50 percent to 100 percent of the permittee’s construction costs, among other remedies.

Enforceable remedies provide much-needed certainty to developers that reduce the potential for a change in administration to interrupt the construction or operation of fully permitted projects, backstopped by the congressional purse.

2. Stricter NEPA Review and Decision-making Deadlines

Like many permit reform initiatives before it, the bill focuses on measures to rein in lengthy NEPA review timelines, which frequently drag on for months and years, delaying critical energy infrastructure projects. The Fiscal Responsibility Act of 2023 created deadlines — one year for environmental assessments (“EAs”) and two years for environmental impact statements (“EISs”) — but applicants are left with little in the way of practical remedies when agencies exceed them. The bill seeks to change that by, for example, limiting competing workloads of senior staff and restricting the agency head’s unnecessary travel to ensure that review timelines are met.

But the bill goes a step further by creating deadlines for agency decisions, and not just the NEPA document. Here, the bill requires that the lead agency must make a decision within seven days of issuing an EA (that being to either issue a finding of no significant impact or a notice of intent to prepare an EIS) and within 45 days of issuing a final EIS. And for other federal agencies considering applicant approvals for the project, those that participated in the NEPA review must act within 90 days (reminiscent of the deadline that the Federal Energy Regulatory Commission (“FERC”) sets for gas infrastructure projects under the Natural Gas Act), and those that did not participate must act within 120 days. Applying these deadlines broadly to all federal agency approvals for a project helps ensure a single agency cannot unduly delay a project by its own indecision. Unfortunately, the bill currently imposes this obligation only on federal agencies, and not state or local agencies acting pursuant to federal law. A better approach would be to apply it to “any authorization required under Federal law,” which the Natural Gas Act does, so that it also applies to state-issued approvals under federal law like Clean Air Act permits and Clean Water Act Section 401 water quality certifications and Section 402 discharge permits.

3. Expanded Fast-Tracking and a Pass on NEPA for Many FERC Projects and Transmission Infrastructure

Categorical exclusions (“CEs”) allow an agency to bypass further NEPA review for categories of actions that experience has shown normally do not result in significant environmental effects. The bill amends and creates several CEs, but the most notable provisions here are a pair that remove certain electric transmission and interstate natural gas pipelines activities from NEPA altogether. Under the gas provision, a wide variety of interstate natural gas pipeline projects — including repairs, upgrades, modifications, looping, compression projects, capacity enhancements, or additions to existing facilities — would be exempt from both NEPA and National Historic Preservation Act (“NHPA”) review (by deeming them not to be a “major Federal action” or an NHPA “undertaking”) so long as they would take place within an existing right-of-way or previously reviewed construction area, along with minimally adjacent areas necessary to complete the activity. The exemption does not affect other requirements, such as the Clean Water Act, Clean Air Act, and Endangered Species Act (“ESA”), and FERC authorization under the Natural Gas Act would still be required. These kinds of projects are routinely subject to delays and opposition from anti-infrastructure groups, even though FERC routinely finds that they do not result in significant impacts to the environment. These provisions would eliminate much of this lengthy review process.

4. Less Delay from Judicial Review

In addition to NEPA reforms, the bill takes to heart the Supreme Court’s statement in Seven County Infrastructure Coalition v. Eagle County, Colorado that prolonged litigation against agency reviews and approvals often results in “[d]elay upon delay, so much so that the process sometimes seems to ‘borde[r] on the Kafkaesque.’” It sets a 150-day statute of limitations for plaintiffs to initiate judicial review of agency actions under a litany of environmental laws, including NEPA, the Clean Water Act, the ESA, NHPA, the Mineral Leasing Act, and more. Time limits on litigation are not a new proposal — the SPEED Act (2025), Energy Permitting Reform Act (2024), the RESTART Act (2023), and the Let America Build Act (2026) have all attempted to advance similar limitations. The bill would also limit review to commenters and claims raised during a public comment period.

While these limits apply to when a lawsuit must be filed, unlike some prior proposals (like the SPEED Act), the bill does not require courts to act on a set deadline, instead mandating “expeditious” review. The federal government frequently requests extensions for filing deadlines due to workloads and lengthy approval processes, and some courts (such as the U.S. Court of Appeals for the Ninth Circuit) have significant case backlogs that can result in further delays.

Far more important, the bill would generally make remand without vacatur the only available remedy. Where a NEPA document or other review is remanded, the bill would require the agency to fix any deficiencies within 180 days while ensuring that the underlying activity can go forward, preventing procedural defects from causing costly delays or cancellations of critical infrastructure projects. Preliminary injunctions would only be available for non-NEPA, non-NHPA violations. Together, these changes are designed to ensure that judicial review is efficient and remains focused on substantive claims without inhibiting infrastructure development.

5. NEPA and Other Challenges Straight to Appellate Courts

The bill would further rein in judicial review by sending most litigation directly to the federal Court of Appeals, including suits involving NEPA, ESA, and NHPA reviews, as well as the seemingly unending dispute over the definition of “waters of the United States.” Immediate appellate court jurisdiction removes a layer of review and aligns with the administrative record-based scope of inquiry. Applicant-initiated suits over NEPA delays, by contrast, will still generally go to federal district court.

6. Tighter Timelines and Limits on Clean Water Act Section 401 Reviews

Under Section 401, an applicant for a federal permit to conduct any activity that may result in a discharge of pollutants into waters of the United States (like large infrastructure projects) must provide the federal permitting agency a certification from the states, authorized Tribes, or other relevant permitting authorities where the discharge will occur that the discharge will comply with applicable water quality standards. States can use this certification process to veto projects and have long been a point of contention, with many claiming that some states abuse their power by, for example, vetoing projects for policy or other reasons unrelated to water quality.

The bill would codify many changes set forth in the Environmental Protection Agency’s January 2026 proposed rule to revise its Section 401 regulations. It would provide greater clarity in statutory timelines (e.g., the one-year clock begins at receipt of the application). Agencies would only be able to deny or condition certifications if they show, by clear and convincing evidence, that no modification or reasonable condition could be imposed to avoid the water quality violation, and that any required measures are the least burdensome approach to ensure compliance. These provisions would help ensure that certifications are closely tied to statutory objectives rather than policy preferences.

The bill also includes special provisions for certain linear infrastructure projects, including FERC-regulated natural gas pipelines and certain electric transmission lines. For those projects, states would have nine months (instead of one year) to issue certifications, waivers, or denials for this category of projects. And even more consequential, the bill would limit Section 401 reviews to direct discharges from the project at hand, and not indirect discharges or from the activity as a whole. This would reduce the extent of activities that trigger water quality review and reduce ways states could exercise their conditioning and veto powers.

7. Enhanced Nationwide Permit Program for Infrastructure

The bill makes several targeted changes to the U.S. Army Corps of Engineers’ (“Corps”) Nationwide Permit (“NWP”) program, summarized below, that are shaped by the history of litigation against NWPs critical for infrastructure development. Project developers, and increasingly large infrastructure projects with minimal environmental impacts, depend more and more on the NWP program to prevent undue delays that often accompany individual permitting timelines. 

8. Option for State Programs to Implement Endangered Species Act Section 7 Consultations

Many environmental laws embody the principle of cooperative federalism by delegating authority to the states, recognizing that states often possess greater expertise about the resources within their borders. For example, most states have permitting authority under the Clean Air Act and Clean Water Act, and states have a key role in NHPA reviews. The bill extends this principle to consultations under the ESA by allowing the Department of the Interior to delegate ESA Section 7 consultation responsibilities to a state that demonstrates it has the legal, financial, and technical capacity to administer the program. Periodic reviews of state programs would ensure that states are not misusing or inadequately administering their delegated authority. Allowing states to administer ESA Section 7 consultations can streamline reviews by reducing the number of agencies involved in the permitting process, as state wildlife agencies are often already engaged in reviewing major infrastructure projects.

9. Reformed National Historic Preservation Act Processes

Section 106 of the NHPA requires the federal government to consider the effects of an undertaking on historic properties, such as prehistoric artifacts or resources of cultural or religious significance to Native American Tribes. The bill would revise and codify the procedures for how agencies administer NHPA reviews. To ensure that the NHPA process does not cause undue delays, the bill ties NHPA deadlines to the NEPA process, with enforceable penalties if the NHPA process exceeds NEPA reviews. Similar to its revisions to the Section 401 certification process, the bill also narrows the scope of Section 106 reviews to considering only direct impacts to historic properties, ensuring that reviews are focused on impacts from the project at hand rather than indirect or cumulative impacts.

10. Streamlining for Various Energy Development Approvals

The bill includes many other changes to various natural resources laws, including the Mineral Leasing Act, Federal Land Policy and Management Act, and the Outer Continental Shelf Lands Act. These revisions are chiefly aimed at eliminating permitting requirements for developments on non-federal lands where the federal government holds only minimal ownership of the mineral estate and streamlining approvals for geothermal projects, renewable developments, and transmission lines — including a new CE for geothermal test projects.

Final Thoughts

In Seven County, the Supreme Court observed that NEPA has become “a blunt and haphazard tool employed by project opponents . . . to try to stop or at least slow down new infrastructure and construction projects.” The bill’s many NEPA provisions help address this, as do the numerous other provisions across the Clean Water Act, NHPA, ESA, and other statutes that opponents use to stymie much-needed infrastructure projects. Its protections for fully permitted projects go further still, giving developers a meaningful remedy when agencies, rather than litigants, are the source of delay or interference. The bill also includes several measures aimed at reforming the approvals process for natural gas pipelines and electric transmission projects, which we will discuss in an upcoming insight.

How many of these permit reform provisions survive legislative negotiation is an open question. The Senate is unlikely to consider the bill until after the midterm elections, and it will likely undergo several modifications as it moves through both chambers of Congress. We encourage project developers and other stakeholders to follow the bill closely as it moves through Congress, because its final shape will depend on the compromises needed to keep its bipartisan support.

We will continue to monitor developments related to permit reform and the Bipartisan American Affordability and Jobs Act. Please reach out to your Vinson & Elkins team to discuss this matter and its implications for your business.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.