The Bipartisan American Affordability and Jobs Act of 2026 (S.5653) was introduced last month, marking an ambitious bipartisan attempt to expedite the federal permitting process by reworking the National Environmental Policy Act (NEPA), the Clean Water Act, and the Endangered Species Act, among others. In exchange, however, the bill would narrow occasions for full environmental review, as well as the grounds for revisiting approvals.

What the Bill Proposes

 Faster Reviews

Under the bill, NEPA-based challenges to federal authorizations would bypass federal district courts. Instead, the circuit court where a project is constructed, expanded, or operated, would have original and exclusive jurisdiction over those claims. Claims would also have to be filed within 150 days by a party that previously submitted a “sufficiently detailed comment” during the public comment period, alleging a direct injury. Moreover, a court finding a NEPA violation could only remand the authorization to the agency, without vacatur or an injunction – i.e., the authorization would remain in effect during the remand. The bill would also allow federal agencies to skip further NEPA review when (1) a state or tribunal environmental review has already covered the project and serves a similar function, or (2) compliance with another federal law serves a similar function to NEPA compliance.

Eliminating district court review would give energy project developers more certainty by removing wait times for a definitive appellate ruling. Though there is no guarantee that cases would move faster simply because they are heard in the first instance by an appellate court. In fact, the bill directs the circuit courts to rule only “as expeditiously as possible” but sets no fixed deadline.

The U.S. Supreme Court’s 2025 decision in Seven County Infrastructure Coalition v. Eagle County (covered by Goldberg Segalla’s ELM here: Supreme Court Cuts Down ‘Judicial Oak’ of NEPA; Energy and Infrastructure Developments Projected to Increase – Goldberg Segalla,) could, however, keep the circuit courts from being overwhelmed by NEPA litigation. The decision limited the scope of Environmental Impact Statement (EIS) review under NEPA by instructing federal agencies to consider only the environmental effects of the “project at hand,” and by holding that courts should “defer to an agency’s reasonable choices regarding the scope and contents of the EIS.”

The bill would codify a similar approach, directing courts to afford “substantial deference” to the agency on the scope and contents of an environmental review. In addition, Department of Air Force v. Prutehi Guahan (covered by Goldberg Segalla’s ELM here: Falling Leaves, Rising Questions: NEPA Returns to the Supreme Court – Goldberg Segalla), which was argued before the U.S. Supreme Court earlier this month, could further limit NEPA’s reach where it overlaps with arguably duplicative federal environmental regulations.

Questions do remain about the potential for parallel challenges and inconsistent results. The bill gives circuit courts supplemental jurisdiction over other claims related to the validity of a challenged authorization. However, in its current form, the bill does not expressly prevent, for example, Clean Water Act claims unconnected to NEPA from being heard in district court. The 150-day deadline to challenge NEPA decisions could also create timing issues for litigants as federal authorizations for a single project are not necessarily issued at the same time.

Project Certainty

The bill also proposes making issued permits harder to revoke. For projects with non-federal sponsors, federal agencies could not revoke, rescind, suspend, or alter federal authorizations or permits in effect on or after September 16, 2026, except in limited circumstances (e.g., a court orders the action, the permit holder materially breached the permit or violated the law, or new information shows a specific and urgent harm). Before acting, the agency would have to give the sponsor written notice explaining the action, its statutory authority, and the supporting evidence. If the sponsor challenged the action, the agency would bear the burden of proving by clear and convincing evidence that an exception applies.

Implications Moving Forward

For developers and lenders, the bill offers meaningful protection against policy swings between administrations, and the September 16, 2026 cutoff means the protection would cover permits already in effect. On the other side, agencies and public interest groups that petition to revisit environmental permits would have a narrower path to reopen a permit and would ultimately carry a heavier burden in court.

The bill has only just been referred to the Senate Committee on Energy and Natural Resources, and its text will likely change as it moves through committee. Still, it paints a clear bipartisan permitting deal, and its potential implications could affect project developers, permit holders, and environmental groups with respect to projects in development and pending or anticipated litigation.