Permitting Reform Gets Real: What the Senate's Bipartisan Energy Bill Means for Your Next Project

On September 30, 2026, the bipartisan leaders of the Senate Environment and Public Works (EPW) and Energy and Natural Resources (ENR) Committees introduced the Bipartisan American Affordability and Jobs Act of 2026, a bill aimed at speeding up and narrowing review processes under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act (CWA), and National Historic Preservation Act (NHPA) when siting and reviewing energy infrastructure projects. The bill was introduced by EPW Chairman Capito, ENR Chairman Lee, and Ranking Members Whitehouse and Heinrich. The bill is wide ranging and faces significant scrutiny from interested stakeholders. The bill faces a cloture vote on November 9, 2026, on the motion to proceed to the legislative vehicle. It would still need House passage and could change before enactment. Many provisions would require follow-on rulemaking led by the Environmental Protection Agency (EPA), the Council on Environmental Quality (CEQ), and the Federal Energy Regulatory Commission (FERC), among other federal agencies. Perhaps most significantly for project developers, the bill would make it substantially harder for federal agencies to revoke or suspend permits and would create powerful new litigation tools and damages remedies for applicants that can demonstrate improper permit denials, delays, or disparate treatment by the federal government. The bill is also intended to clarify certain rules of the road for meeting the energy needs of data centers.

Below are the provisions that will matter most to developers.

Division A, Title I: NEPA

The 2023 Fiscal Responsibility Act already imposes one- and two-year deadlines for agencies to prepare environmental assessments (EAs) and environmental impact statements (EISs), respectively (42 U.S.C. § 4336a(g)). But those deadlines are soft: Agencies can extend them after consulting the applicant, and a sponsor suing over a missed deadline gets, at most, a court-ordered schedule of up to 90 days. Agencies have also lacked government-wide NEPA regulations since the CEQ rescinded them in 2025.

The bill would make the following notable changes:

• Earlier start to review clock. It keeps one- and two-year deadlines but starts an agency's review clock at the earlier of either the agency's level-of-review decision (i.e., the agency's decision that the action requires an EA or EIS) or the agency's notice that the application is complete. Other triggers (e.g., notice of intent to prepare) would be removed. (§ 1106). This means that an agency's "completeness" determination would almost always trigger the NEPA clock. Moreover, extensions would now require the sponsor's approval, not just mere consultation.
• Post-NEPA deadlines. It sets post-NEPA document certification deadlines: a finding of no significant impact within seven days of an EA, a record of decision within 45 days of an EIS, and 90 days for participating agencies (120 for non-participating agencies) to act on all remaining authorizations. Courts would have to decide suits regarding an agency's deadline within 120 days.
• Longer programmatic review. Programmatic reviews could be used for 10 years instead of five.
• Limits on agency delays. Agencies could not delay a review to await new research. CEQ would resolve interagency disputes, and its decisions could not be challenged in court.
• Litigation limits. Under § 1110, NEPA claims would have to be filed in federal courts of appeals within 150 days, the remedy would generally be remand without vacatur, and the project could proceed during remand, unless a preliminary injunction is granted to stop the action.

What it means for developers: Firmer deadlines, sponsor control over extensions, and narrower litigation remedies would make NEPA timelines more predictable and let projects keep moving even when challenged.

Division A, Title II: Clean Water Act

Section 401 certification gives states leverage over federally permitted projects to ensure a proposed action complies with a state's water quality criteria. Today a state has a "reasonable period of time," up to one year, to act (33 U.S.C. § 1341(a)(1)) on Section 401 certification requests. National Pollutant Discharge Elimination System (NPDES) permits and § 404(e) general permits (allowing certain categories of activities on a nationwide, regional, or state basis) last five years (§§ 1342(b)(1)(B), 1344(e)(2)), and EPA's § 404(c) veto (allowing EPA to restrict, prohibit, or deny the use of an area as a disposal site for dredged or fill material) has no time limit. The bill would make the following notable changes:

• Section 401 certification. Section 1202 would limit Section 401 certifications to water quality (in response to some states increasingly considering criteria not directly related to water quality). States would have to justify a denial or condition by clear and convincing evidence that no reasonable condition would allow compliance. Any conditions would now have to be the least burdensome available.
• Certification for pipelines and transmission. Interstate transmission lines and gas pipelines would need Section 401 certification only for direct point-source discharges, with a nine-month limit on review for certification to be issued.
• Longer permit terms. NPDES permits and general permits would run for 10 years (§§ 1203–1204).
• End to post-permit vetoes. EPA's § 404(c) veto window would close once the U.S. Army Corps of Engineers issues the permit.
• Codified Nationwide Permits and applicability. Nationwide Permits 12, 14, 43, 57, and 58 would be written into the statute (shielding them from rescission by future administrations), and the bill increases the "minimal adverse effect" trigger for these permits from the typical at or over 0.5 acres to at or over two acres.
• Faster litigation. Challenges to § 404 permits would need to be filed within 150 days (§ 1205) of approval of the permit.

What it means for developers: States could no longer use Section 401 certifications to delay projects or impose conditions unrelated to water quality, and the § 404 permits that most energy projects rely on would last longer and be harder to veto or challenge.

Division A, Title III: Endangered Species Act

Formal Section 7 consultation, the core requirement to ensure that any action a federal agency authorizes will not jeopardize the continued existence of listed threatened or endangered species or destroy critical habitat, currently runs 90 days and can be extended to 150 days without the applicant's consent. 16 U.S.C. § 1536(b)(1). The bill would make the following notable changes:

• Shorter consultation. Section 1302 would shorten the formal consultation period from 90 to 60 days, and the extension period from 150 to 100 days.
• Right to sue for delay. Applicants could sue for unreasonable delay once consultation passes 145 days (we note that this would give the wildlife agencies, effectively, a 45-day buffer or cure period before a delay is subject to litigation risk).
• Tied to NEPA. Consultation would generally have to finish by the time the underlying project's NEPA document (EA, EIS, or finding of no significant impact) is otherwise complete.
• State assumption. States could take over consultation under a new ESA Section 7A, although applicants could still choose to consult with the federal government (§ 1304).
• New path to challenge biological opinions. Current § 7(n) provides direct appellate review only for Endangered Species Committee exemption decisions. The bill would add a parallel provision allowing challenges to biological opinions in the D.C. Circuit, filed within 150 days after the opinion is made public. Because the bill does not make D.C. Circuit review exclusive, whether challengers could still seek review in district court or other federal circuits remains an open question.

What it means for developers: ESA consultation would no longer be an open-ended scheduling risk that outlasts NEPA review, and challenges to biological opinions would face a short filing deadline.

Division A, Title IV: Project Permitting Certainty

For developers, this may be the most significant part of the bill. Section 1401 would bar agencies from revoking or suspending permits in effect on or after September 16, 2026, except in narrow circumstances. Agencies would bear a clear and convincing burden of proof, and developers could recover 25-50% of their sunk project costs. Section 1402 would let applicants sue over a "pattern of disparate treatment" against their project type, defined as an empirically demonstrated statistical pattern that shows a substantial increase, compared to the five most recent calendar years, of unreasonable delays and improper denials and that is the result of an intentional course of action undertaken by the federal government. An applicant who successfully proves their permits were improperly denied or unreasonably delayed could recover 50-100% of expected construction costs.

What it means for developers: This provision could foreseeably be used by an industry group disfavored by a particular administration to challenge persistent mistreatment by that administration.

Division B, Title I: Electric Transmission, Data Centers, and Large Loads

Title I would make significant changes to federal transmission policy. The bill would expand and streamline federal transmission permitting and regional planning, facilitate reconductoring and other upgrades within existing rights-of-way, encourage the use of advanced transmission technologies, and require greater coordination between transmission planning and generator interconnection processes. It would also prohibit a utility's rights of first refusal for certain transmission projects, require large computational loads, such as data centers, to bear the embedded and incremental costs of the transmission facilities needed to serve them, expand wholesale-market participation opportunities for certain behind-the-meter energy resources, and impose new requirements relating to interconnection studies and grid data, including requiring greater use of AI in the interconnection study process.

What it means for developers: Title I is intended to accelerate transmission development and grid expansion while protecting existing customers from bearing the costs of serving new large loads like data centers. Although the provisions aim to promote transmission expansion, grid modernization, and large-scale infrastructure development, they also create additional planning, cost-allocation, and reporting obligations for utilities, transmission providers, and large electric load users, potentially introducing further complexity, risk, and delay into the project development process.

Division B, Title II: Accelerating Renewable Permitting, Including Hydropower, and Grid Modernization

Sections 2213 and 2214 would add categorical exclusions for small solar projects, battery energy storage systems, transmission and distribution facilities, substations, and associated infrastructure in designated corridors on previously disturbed or developed land.

In addition to the bill's provisions tightening the timelines for NEPA review and significantly revising the scope of Section 401 certification reviews, Subtitle D includes several reforms intended to streamline hydropower development and operation. Notably, Section 2232 would narrow the scope of mandatory conditions resource agencies may impose under Section 4(e) of the Federal Power Act, potentially reducing their influence over FERC's final licensing decisions. The bill would also direct federal agencies to identify and address market barriers to hydropower development, provide additional flexibility for maintenance and temporary operational adjustments, and establish a streamlined framework for qualifying micro-hydrokinetic projects.

What it means for developers: These provisions could reduce regulatory burdens for existing facilities and simplify development of smaller hydrokinetic projects but have already drawn pushback from environmental and recreational stakeholders.

Division B, Title III: Historic Preservation

Section 106 of the NHPA, codified at 54 U.S.C. § 306108, requires agencies to "take into account" a project's effects on historic properties. The process runs under Advisory Council regulations (36 C.F.R. part 800) and has no statutory deadline. It already limits review to an "area of potential effects" defined by causation and allows coordination with NEPA. However, Section 2301 would rewrite the NHPA as follows:

• Undertaking determination. Agencies would have 30 days to decide whether a project is an "undertaking" at all.
• Narrower scope. Review would exclude areas affected only by parts of a project that are not subject to federal control and responsibility. "Reasonably foreseeable" effects would be limited to those proximately caused by the project, excluding speculative effects and effects tied to other past or future undertakings. In effect, this ends cumulative-effects review.
• NEPA lead agency and timeline. The NEPA lead agency would be the presumptive Section 106 lead, with a 15-day backstop for designation. Consultation would have to finish by the NEPA deadline, enforceable in court.
• Non-responsive parties. If a consulting party does not respond within 30 days of a request for review of a report or finding, the agency could proceed without that party's review.
• Limited litigation. Claims would be due within 150 days after the later of the public notice of agency action or notice to the state historic preservation officer or tribal counterpart. Claims would be filed directly in a federal court of appeals. Remedies would be limited to remand without vacatur, with 180 days for the agency to act, with preliminary injunctions allowed only in limited circumstances.

What it means for developers: Section 106 would run on the NEPA timeline with a narrower scope, and deadlines that can be enforced in court would make a successful Section 106 challenge less likely to stop a project.

What To Expect in November

The bill is not yet law. It faces a cloture vote on November 9, would still need to pass the House, and could change significantly. The outcome of the November 2026 elections may also reshape it. Even if it passes, many provisions would only take effect after EPA, CEQ, FERC, and other agencies issue rules to carry them out.

Developers don't need to wait for a final bill to start planning. Projects already in federal review, or about to enter it, could see changes to their review deadlines, litigation risk, and permit protections. Those changes may affect schedules, financing, and how risk is allocated in project agreements.

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Molly Barker is counsel in DWT's Seattle office, Shannon O'Neil is counsel in the firm's Washington, D.C., office, Dan Quinley is counsel in our San Francisco office, Olivier Jamin is counsel in our Portland office, and Sean Atkins is a partner in our Washington, D.C., office. DWT's energy, natural resources and environmental team is following the bill closely and will report on major developments. If you have questions about how the bill could affect a specific project, or want help planning for the changes, please contact the authors or another member of our energy, natural resources and environmental team. To stay informed, sign up for our alerts.