What Does the Blue Wave Mean for Permitting Reform?

In the lead-up to the midterm elections, the outlook for passing the Senate’s bipartisan permitting reform deal during the lame-duck session was already highly uncertain. While environmental and clean energy advocates praised the transmission sections of the deal, a growing chorus warned of negative consequences from its provisions to fend off politically motivated attacks on energy projects, as well as its changes to tribal consultation in the federal permitting process. Prominent clean energy Democrats John Podesta and Representative Sean Casten of Illinois also piled on. President Trump, meanwhile, was not holding up his end of the bargain to release proposed wind projects held captive by Department of Defense reviews.

Post-election, the odds of the Bipartisan American Affordability and Jobs Act’s passage are likely a few degrees worse. Jared Huffman, the Democratic Representative from California who is next in line to lead the House Natural Resources Committee, reiterated his view that the Senate should hold off on a vote and take another pass at the bill in the next Congress, when Democrats have more leverage. Other Democrats who were sitting on the sidelines of the debate may also now feel emboldened by the party’s overwhelming win and agree that a better deal could be had by waiting.

Proponents of the bill view the election results as a clear endorsement of BAAJA. Energy bills were on the ballot, and “to reduce energy prices is to pass permitting reform,” Jason Grumet, the CEO of the American Clean Power Association, said during a call with reporters on Wednesday.

Jane Flegal, a senior fellow at the Searchlight Institute, argued on X that “most of the things” Democrats can do to address energy affordability at the federal level are in BAAJA, such as reforms to speed up the buildout of transmission lines, utility oversight, greater certainty for clean energy developers, and provisions to force data centers to cover their costs. “Dems shouldn’t wait on permitting. BAAJA is a good bill, and the filibuster and veto don’t go away in January,” she wrote. But the real reason not to wait, she added, is that if Democrats win the White House in 2028, they will need to “hit the ground running, especially on energy affordability,” and reform “takes years to implement.”

Joe Brazauskas, a partner at the government relations firm Bracewell, said during a post-election webinar on Wednesday that he’ll be watching for four indicators of how the permitting reform deal will fare in the coming days and weeks. First, will the senators who negotiated the deal come back with a major push for the bill?

So far, they don’t seem to be backing down from plans to put the package to a vote next Monday, November 9. “We don’t have more years to lose as clean energy projects sit on the sidelines, and there’s no guarantee Congress would ever find another compromise that would be able to pass the Senate,” Senator Sheldon Whitehouse of Rhode Island, one of the bill’s authors, told me in a statement. “Democrats ran and won on affordability, and this bill lowers costs for families and will allow us to start delivering on our election promises. It’s a bird in the hand. We’d be fools not to take it.”

Senator Martin Heinrich of New Mexico, the bill’s other Democrat author, provided similar comments to Politico. “We’ve been trying to pass permitting reform for the better part of a decade,” he said. “It doesn't necessarily get easier just because of who the chair is. This is the closest we have come to actually finding something that can get signed into law. I’m not going to wait.”

The second indicator is what Trump does next. Will he make any substantive wind farm approvals? Grumet said he doesn’t think the legislation will move forward unless a “significant number of those projects” being held up in the Department of Defense review process are released. With the Senate vote scheduled for Monday, the clock is ticking. Grumet was bullish that Trump would play ball, noting that “every interaction we’ve had with the administration affirms that they want to close this deal.”

There’s also the question of how hard the president will gun for the deal more generally. As I’ll explain, the bill could face steep hurdles with key Republicans in the House that may require the president’s cajoling to overcome. Several speakers in the Bracewell webinar suggested that Trump may want some legislative wins to cement his legacy. Whether that translates into a push in the lame duck, or a potential deal in the next Congress, remains to be seen.

The third indicator is whether and how the bill’s authors address the issues raised around tribal consultation and “project certainty” in an amendment before the vote. There are signs that these can be resolved. Before the election, Punchbowl News reported that the Coalition of Large Tribes, whose members control a large portion of tribal lands in the country, was negotiating to improve the bill with technical fixes rather than fighting it altogether. Several bill proponents also told me that fixes for project certainty were underway.

It’s still unclear, however, whether small technical fixes will be enough to rally more support for the bill in the House, or alternatively, if those changes turn out to be more substantive, whether they threaten the bill’s delicate bipartisan balance.

The last indicator is, will Democratic leadership support the bill? Senate Minority Leader Chuck Schumer has not yet shared his views. “The Democrats’ performance was so overwhelming last night that the outside groups that talk to Democrats, the ENGOs, have to be emboldened,” Brazauskas said. “They have very strong views on the Clean Water Act provisions, the Endangered Species Act provisions, Judicial Review, and I really think that that will impact how that’s viewed by Democrats on the Hill.”

If the bill does pass the Senate next week, it faces an uncertain road in the House, and not just because of opponents like Huffman. Republican leadership will have to make a strategic choice about where to send it.

The typical first step would be to refer it to the House Energy and Commerce Committee. At least as of a few weeks ago, however, the committee chair, Representative Brett Guthrie of Kentucky, was looking for changes to the transmission section of the bill, which would have costly consequences for Southeast electric utilities, as it would support the construction of new interregional transmission lines that compete with their business models.

If House leadership wants to avoid Guthrie’s committee, they could send the bill to the House Rules Committee, which could tee it up for a simple majority vote. The Rules Committee is also controlled mostly by southern Republicans, however, who may have some of the same sympathies as Guthrie. This is where Trump’s commitment to getting the deal done would likely be crucial.

Another option is to move the bill through “suspension of the rules,” a procedural tactic that allows the House to consider legislation without a rule from the Rules Committee — although this would mean the bill would require a two-thirds majority to pass. It is typically reserved for bills with broad consensus, such as when Congress renames post offices.

One final potential pathway is to attach a Senate-passed version of the bill to must-pass legislation, such as a government funding package or the annual military authorization bill. Congress successfully enacted the Energy Act of 2020 by attaching it to a consolidated appropriations measure after Donald Trump lost the presidential election to Joe Biden. That bill was not as controversial as BAAJA, however, and so the approach may be too risky.

Hanging over all of this, and affecting how the numbers stack up for a vote, is another question the Democratic landslide has now raised. How many House Republicans will even show up for work in the lame duck?