On November 9th, the U.S. Senate voted to advance S. 5653, the Bipartisan American Affordability and Jobs Act (BAAJA), to the Senate floor for debate. BAAJA is a bipartisan compromise to streamline the federal permitting process. While this bill has many promising elements, it also threatens our water, undermines Tribal sovereignty and consultation, and weakens key environmental safeguards in the name of efficiency.
Idaho’s rivers are shaped by decisions made far from the water. Whether a dam’s license protects fisheries and beneficial uses, whether a mine’s impacts receive the hard look and critique they deserve, and whether the public gets a say in all of it. Many of those decisions run through a handful of federal laws, and this bill would change how they work and interact.
BAAJA is a sweeping permitting reform package that was negotiated by Senators Capito, Lee, Whitehouse, and Heinrich. This group spans a wide range of views on energy, climate, and public lands, and their differing views on permitting are evident in the compromise now facing amendments before it possibly heads to the House.
IRU has long supported meaningful permitting reform. The future we envision will require building, and that building requires permits. We should reduce the time it takes for new energy sources to connect to the grid. We should impose additional guardrails on the booming data center development. Agency staff should be able to say “no” to mine projects that will never make sense.
However, the provisions in BAAJA, while taking some positive steps toward these goals, dramatically overstep and prioritize speed over meaningful reform.
What BAAJA gets right
Federal permitting and reviews can indeed be slow and unpredictable. The same laws used to fight ill-sited mine projects and speak up for salmon can be used to delay or stop what we view as “good” projects. For instance, we urgently need to expand the power grid, deploy new green energy sources, and advance habitat restoration projects–all of which are subject to the same permitting process.
BAAJA takes real steps to expand transmission infrastructure, promote geothermal power, and move agencies toward modern digital permitting. It also tries to make data centers pay for the grid costs they create. Getting Republicans and Democrats to negotiate in good faith on any of this is no small thing, and we certainly see it as a step in the right direction.
Where BAAJA goes too far
In trying to speed things up, the bill also weakens some of our nation's most important bedrock environmental protections that have kept Idaho’s rivers and fish in the fight for decades. Our biggest concerns:
Less power for states and Tribes to protect clean water. Today, states and Tribes can require that federally permitted projects, including hydropower dams, meet water quality standards. BAAJA would make this much harder, shifting the burden to states to prove, by “clear and convincing evidence,” that conditions are justified.
A weaker footing for science and species protection. The bill would shorten the time wildlife agencies have to review projects that could harm endangered species. It would redefine “best available science” in ways that could let non-biological information outweigh what we know about the species themselves. It would also let states take over federal Consultation duties, even though many states and their agencies lack the staff or expertise for that level of analysis.
Courts with less ability to stop harm. Today, if a federal agency skips a step in its environmental analysis, or simply does a poor job, a court can order it to be fixed. However, this bill would require projects to keep moving forward while the agency corrects the analysis, resulting in a paperwork exercise that would fall short of real protection. Groups would also have just 150 days to sue, down from 6 years in some cases.
A narrower look at the options. Environmental reviews would have to weigh only alternatives that meet the project sponsor’s goals. From a dam relicensing perspective, that could take changes to dam operations, river restoration, or even dam removal off the table before the conversation starts. For mine projects, it would all but eliminate any possibility of narrowed impacts or target development for proposals that maximize profit above all other considerations.
Less say for Tribes. Federal Agency officials will gain the power to unilaterally decide, regardless of Tribal Consultation and objection, that a project's harm would not disqualify a site from inclusion in the National Register or decide that “other considerations” outweigh historic preservation.
Weaker rules for mining on public lands. The bill also folds in the text of the Mining Regulatory Clarity Act, which we have opposed in the past. The 1872 Mining Law governing hardrock mining on public lands is already severely outdated and offers few safeguards; the provisions in BAAJA would further weaken the law by giving mining companies more statutory rights to use public lands for waste dumps, roads, and other facilities tied to their operations, with few limitations, while still failing to impose any royalty structure on hardrock mining.
IRU is not opposed to permitting reform; in fact, we fully agree that now is the time to meaningfully address these issues. However, we oppose reform that fast-tracks projects by cutting out the science, public input, and legal accountability that protect our rivers.
The bill now moves to the full Senate floor for debate and amendments. While many Senators have expressed concerns, we expect the bill to move to the House relatively quickly, given the initial vote count to proceed.
While the focus is still on the Senate, this bill will eventually head to the House. Now is the time to contact your members in both chambers and tell them you support faster, smarter permitting–but not at the cost of clean water, salmon, Tribal consultation, or the public's right to be heard. Ask your senators and representatives to oppose S.5653 as written and to push for changes that protect our rivers, fish, and public lands.
