In a recent public letter, David Bookbinder, one of the nation’s most prominent centrist climate-law experts, described the Senate industrial-expediting bill BAAJA (S. 5653) as “a serious threat to democracy.”
Bookbinder, who has served as chief counsel for the center-right Niskanen Center and for the Sierra Club, and led an independent legal consultancy with former ExxonMobil climate policy manager David Bailey, summarized the legislation thusly:
On the one hand, it makes renewable energy permitting easier and significantly improves federal transmission policy. On the other hand, it makes fossil fuel infrastructure permitting even easier than it has already become, binds future administrations to the energy permitting policies of the Trump administration, seriously weakens the Clean Water Act, and effectively repeals the National Environmental Policy Act (NEPA) and the Endangered Species Act.
Although he finds fault in every title of the bill, Bookbinder is most concerned by Title IV, “Project Certainty,” which “beggars belief.”
“By placing corporations with any such federal permit not above the law so much as completely beyond its reach,” Bookbinder continued, “these ‘project certainty’ provisions seriously threaten American democracy.”
BAAJA effectively repeals the National Environmental Policy Act: “These measures will make NEPA review largely meaningless, but ultimately that won’t matter because the Bill adds a new judicial review provision making whatever is left of NEPA unenforceable.”
BAAJA Section 1106 provides a “disturbing” runaround of scientific information: “Allowing agencies to ignore scientific evidence while making decisions makes no sense whatsoever, and there is no imaginable rationale for this except as a means of limiting the amount of information an agency must consider.”
BAAJA requires the Trump Council on Environmental Quality to establish rules for an AI-run permitting system within 60 days: “This is a massive task, and the 60-day timeline means that the Trump CEQ has probably already prepared it. It is highly concerning that this CEQ will establish ‘data quality standards’ that will be used to exclude information this administration doesn’t like.”
BAAJA eliminates the Clean Water Act provision used by governors to stop the Jordan Cove LNG export terminal; PennEast natural gas pipeline; and the Northeast Supply Enhancement (NESE) Pipeline.
BAAJA’s extension from 5 to 10 years of certain Clean Water Act permits will “dramatically slow progress in reducing water pollution in states that take [effluent] permitting seriously.”
BAAJA “seriously weakens” the Endangered Species Act.
Section 1304 of BAAJA allows the federal government to transfer responsibilities of protecting an endangered species to any given state; “unless the state has a proven commitment to endangered species, that’s the end of the story.”
BAAJA effectively repeals the National Historic Preservation Act: the federal government “can wave a magic wand and decide to exempt any project from the NHPA and that decision is not reviewable in court.”
Download the full letter.