Transportation Advocates Split on Senate’s Big Permitting Bill

The Senate’s massive new permitting reform bill could unlock more highways and other fossil fuel-powered infrastructure even as it boosts transit — so transportation advocates are split on whether to support it in the context of a larger mobility culture that makes it all too easy to build auto-centric projects and snarl multimodal ones in red tape.

The Senate voted to advance the Bipartisan American Affordability and Jobs Act on Monday, bringing the so-called BAAJA one step closer to passage, but also unleashing a firestorm of contradicting takes among proponents of sustainable and equitable development.

That’s because the 417-page legislation would essentially make it easier for communities to build just about anything they want, including AI data centers, ICE detention facilities, and oil wells, alongside green projects like solar farms and interstate transmission lines to deliver clean energy across the country.

Some advocates like Bill McKibbens questioned those trade-offs, calling the bill “a reflection of pre-election politics, when the GOP had all the power,” while others like Evergreen Action’s Pete Wyckoff called it “a big step forward for America’s clean energy economy.” President Trump, meanwhile, offered his full-throated support of the bill on Truth Social, calling it “a BIG WIN for U.S. ENERGY INDEPENDENCE and DOMINANCE.” (Capitalization, obviously, his.)

Advocates for transportation reform, though, had conflicting views on what the bill would mean for their issues Let’s wade into why.

The case against the BAAJA …

Most transportation reform advocacy orgs haven’t offered an official position on the BAAJA, but some broader sustainability groups have raised alarm bells about many of its biggest provisions – including those that would have huge implications for our national mobility culture.

For one, the bill would exempt many projects from the lengthy environmental review process currently required under the National Environmental Policy Act, including some highway widenings — at least if they don’t “alter the function or increase the capacity of the lifeline infrastructure by more than 20 percent,” the legislation states.

Some say that’s a sensible move that would push state Departments of Transportation to fix it first. Others, though, argue that highway agencies have a long track record of simply calling new interstate travel lanes “auxiliary lanes” on paper, to avoid triggering NEPA or more-stringent blue state laws— even if, to the naked eye, it sure looks like they’re expanding roads to fit more cars rather than adding a little more space for existing traffic to merge.

Moreover, those new “lifeline” exclusions would effectively allow highway agencies to hide how expansions-by-another-name will pollute, endanger, violate civil rights, and otherwise harm surrounding communities until it’s too late to stop them.

“The thing that folks need to understand about NEPA is that without the ability to hold DOTs accountable for providing complete and truthful information in the environmental review process, there is no guarantee that the public — or even the government itself — will fully reckon with the environmental and societal impacts of a highway expansion project,” added Tony Dutzik, associate director with the Frontier Group, an independent sustainability research group. “It just won’t happen.”

Even when road projects are still NEPA-eligible, the Senate’s new permitting bill would narrow the window advocates have to sue agencies for violating it from six years to just 150 days. As a result, only litigants with the time and resources to fast-track complicated lawsuits will have a chance to slap red tape on asphalt, and many grassroots groups would likely be out of luck.

It will also make many potential litigants ineligible to mount lawsuits, at least if they didn’t get wind of a project early enough to register a “substantive” comment proving they were facing “direct harm” from the project — two vague qualifications that some advocates say could be too easily get good suits tossed out by highway-happy judges.

Perhaps most disturbingly, David Bookbinder of the right-leaning Federalist Society noted that the bill would bar the federal government from taking any action to alter the operation of highways and other harmful infrastructure “at full capacity” after they’re built.

“In other words, a single federal permit or authorization under any one federal law effectively immunizes that project from adverse effects from changes in … any federal law at all,” he wrote in an open letter.

Taken together, some fear that the bill would functionally eliminate NEPA and speed emissions in the transportation realm — though no one’s quite sure by how much. Even the most optimistic scenario modeled by the independent Rhodium Group predicted the law would bring about only a 4-percent dip in emissions by 2040; in the least-optimistic scenario, emissions wouldn’t fall at all. And neither model mentions the mobility sector, specifically.

With so much to lose and the Democrats about to gain control of the House and Senate, advocates like Erik Schlenker-Goodrich of the Western Environmental Law Center urged Congress to wait out the lame-duck session to fight for a better bill, rather than settling from a dangerous compromise.

“The false urgency imposed on senators by the bill’s sponsors exists for only one reason—to minimize scrutiny and prevent lawmakers and Americans from understanding the enormity of BAAJA’s power transfer away from the people and to the oligarch class,” Schlenker-Goodrich wrote. “There is a constructive conversation to be had in the 120th Congress to build out renewables infrastructure and deliver on the promise of affordability, while respecting people and place.”

… and the case for it

Even if it would kneecap NEPA, though, some transportation reform advocates are still standing up in support of BAAJA — in hopes it will blast us into a new era of transit abundance.

In an October essay for Eno Center for Transportation, former FHWA administrator Stephanie Pollack argued that “NEPA has largely become an obstacle to getting good projects built, rather than a tool for stopping bad ones,” noting that safety, repair, and locally-driven initiatives will have a much easier time breaking ground without the burdens of the law in its current form.

“Which projects did NEPA delay while I was at US DOT? Bridge repairs and transit investments, ports and roadway safety projects, congestion pricing for New York City, and a project to build a community grid in place of a highway in Syracuse, New York,” Pollack wrote. “Which projects moved through the NEPA process largely unchanged and without a successful court challenge? Pretty much every major highway expansion.”

The American Public Transportation Association agreed in its endorsement of the bill, noting that a lot of the bill’s changes are purely procedural, like removing requirements for agencies to duplicate their efforts when state and federal review requirements mirror eachother, and setting enforceable deadlines for federal agencies to move the process forward rather than letting projects languish.

President Paul Skoutelas noted that too often, transit, biking and walking projects get mired in this kind of bureaucracy for years, while highway projects sail through with little friction. Some DOTs are even permitted to perform their own NEPA reviews — and many like Texas use it to rubber-stamp harmful highway projects their communities don’t want, rather than speed the delivery of ones they do, like new rail lines.

“Every year a project waits in review, costs go up and riders wait longer for the service they need,” Skoutelas said. “This bill provides public transit and passenger rail agencies the certainty they need to plan, build, and maintain their systems, and deliver improvements to riders sooner. We look forward to working with Congress to get it across the finish line.”

Supporters of BAAJA acknowledge that the political climate for permitting reform will likely shift when the new Congress gets sworn in. But after literal decades of inertia on such a critical issue, they say it’s time to seize the moment and get the bill done now.

“Legislation is always a compromise, and Republicans were able to extract significant concessions in this bill,” Evergreen Action Executive Director Lena Moffitt said in a statement published after the midterms. “[But] this bill weakens tools that advocates have used for decades to protect communities from the harms of the fossil fuel industry.

“The hard truth is that despite decades of advocacy, polluting fossil fuel projects and pipelines are still being built en masse, while transmission lines are not,” Moffitt continued. “If the status quo remains, and clean energy projects are not built faster, the toll of the climate crisis will only get exponentially higher.”

The big picture

Of course, advocates on all sides of the issue recognize that permitting form alone won’t be enough to undo America’s forced car-dependency crisis, at least absent other policy reforms.

After all, communities probably wouldn’t need to sue for NEPA violations if highway agencies were legally required to “track outcomes and make decisions based on those findings” in the first place, as Joseph Womble recently noted in a blog for Transportation for America. As it stands, though, DOTs can keep right on collecting federal money to expand their interstates, even if the last expansion that they swore would cure congestion did the opposite instead.

Transit agencies, meanwhile, rarely have the resources or political support they need to keep networks moving, never mind expand them. And the place to fix that capacity problem requires giving them more support in the next major federal transportation bill — not eliminating phases of the permitting stage, which many transit projects never gather enough money to reach.

“We don’t just need streamlined processes and more resources to create a modern, safe, and sustainable transportation system that achieves its intended outcomes,” Womble wrote. “We also need new priorities for what we’re trying to build or accomplish in the first place — not just streamlining the building of the same expensive stuff that serves yesterday’s needs.”

At the end of the day, advocates like Dutzik argue that U.S. permitting law already privileges highways. Now, it’s on advocates to decide whether or not the BAAJA will take that proverbial thumb off the scale and give multimodal projects a fighting chance — or just push it down even more by drowning the country in asphalt.

“So-called ‘permitting reform’ has been happening with transportation projects for quite a while,” added Dutzik. “It’s part of a larger and longer-standing pattern of shortcutting the necessary review of expensive and damaging projects at the expense of transparency and public awareness.”