Bipartisan Senate Permitting Bill Would Reshape Federal Environmental Review and Energy-Project Approvals

• Faster federal review schedules. The Act would set firmer procedures for enforcing NEPA’s existing one-year deadline for environmental assessments (EAs) and two-year deadline for environmental impact statements (EISs) and would establish follow-on deadlines for records of decision and related federal authorizations.
• Shorter litigation windows and narrower remedies. The Act would establish 150-day filing periods for specified claims under NEPA, the CWA, the ESA and the NHPA, as well as for challenges to authorizations for defined energy, carbon-management, mineral and forest-restoration projects. For NEPA, NHPA and certain CWA claims, challengers generally would need to preserve issues through an available public-comment or consultation process. For certain NEPA and NHPA deficiencies, courts generally would remand an approval for correction while allowing it to remain in effect.
• Greater protection for issued permits. For projects with nonfederal sponsors, agencies generally could not revoke, suspend, withdraw or alter federal authorizations in effect on or after September 16, 2026, subject to specified exceptions, including court orders, material violations, fraud, newly identified urgent harm or a request from the permit holder or project sponsor.
• Water permitting and species consultation. The Act would change CWA section 401 certification procedures, extend the maximum terms of NPDES permits and section 404 general permits from five to ten years, and shorten specified ESA section 7 consultation periods.
• Project-specific permitting pathways. The Act would strengthen the Federal Energy Regulatory Commission’s (FERC) authority to site qualifying interstate transmission facilities and facilitate certain grid-capacity upgrades within existing transmission rights-of-way. It would also establish or expand categorical exclusions and other streamlined permitting pathways for specified renewable energy, geothermal, hydropower, federal onshore energy, hardrock mining and offshore energy projects.
• Clean Air Act permitting remains applicable. The Act does not amend the Clean Air Act. A new refinery or other industrial facility would still need to obtain applicable air permits, even if the Act expedited other aspects of its federal review or permitting.

Proposed Changes to NEPA Review
The Act would amend NEPA to narrow the range of federal actions requiring review and establish more predictable review procedures. NEPA review applies to agency actions that qualify as a “major Federal action.” The Act would exclude specified activities from that definition, including certain nonfederal projects involving no or minimal federal funding or involvement; projects for which the only federal involvement is a loan or loan guarantee; and grants, cost-share awards and other financial assistance where the agency does not exercise predominant control over the use of the assistance or the action’s environmental effects.

The Act would also expand the availability of categorical exclusions (CEs)—categories of actions that do not ordinarily require an Environmental Assessment (EA) or Environmental Impact Statement (EIS)—by allowing agencies to combine multiple applicable CEs for a single action and by streamlining the ability of one federal agency to adopt CEs established by another agency. The Council on Environmental Quality would maintain a government-wide public inventory of established CEs to facilitate their use across agencies.

To provide more predictable review schedules, the Act would retain and strengthen NEPA’s existing deadlines by generally requiring publication of an EA within one year and an EIS within two years after the earlier of the lead agency’s determination that the document is required or its notice that the project sponsor’s application is complete. The Act would also impose follow-on deadlines, including a requirement that the lead agency generally issue a record of decision within 45 days after publication of an EIS.

Those schedules place particular importance on when an application is deemed complete. Unless another statute provides a shorter period, a federal agency would have 60 days after receiving an authorization application to notify the applicant that the application is complete or identify the additional information needed. Once the agency determines that the application is complete, it generally would have another 60 days to determine whether the action qualifies for a CE, is outside NEPA’s scope, requires an EA or requires an EIS.

Limits on Judicial Review and Remedies
The Act would make substantial changes to challenges to federal authorizations based on NEPA reviews. A claim generally would need to be filed within 150 days after the relevant authorization is published or otherwise made public. Where a public-comment opportunity was provided, the claimant generally would need to have raised the challenged issue in a substantive comment sufficiently detailed to put the agency on notice. The claimant would also need to allege an actual or imminent injury amounting to direct harm.

If a court finds that an authorization does not comply with NEPA, the prescribed remedy would be remand to the agency for correction, without vacating the authorization or enjoining the project, subject to a court-ordered cure period of no more than 180 days. A court could enjoin a project only if the plaintiff demonstrates a substantial likelihood that (i) the authorization violates federal law other than NEPA or the NHPA, (ii) an injunction is necessary to prevent irreparable harm, (iii) the balance of equities favors the plaintiff, and (iv) an injunction is in the public interest. The authorization would otherwise remain in effect, and project activities could continue, while the agency addresses the deficiency.

The Act would also change filing deadlines and, in some instances, remedies for challenges under the CWA, ESA and NHPA. The amendments generally establish 150-day filing periods, although the covered agency actions and claim-preservation requirements differ by statute. Separately, the Act would establish a 150-day limitations period for challenges to final agency actions granting or denying federal authorizations for defined energy, carbon-management, mineral and forest-restoration projects that require both a NEPA document and a federal authorization.

Clean Water Act Amendments
The Act would prescribe new procedures for state and Tribal certifications under CWA section 401. It would establish new application-completeness requirements and retain the existing one-year cap on the reasonable period that the federal licensing or permitting agency, in consultation with the certifying authority, establishes for a certification decision. An extension would require the applicant’s written request and the certifying authority’s written concurrence. The certifying authority could grant certification, grant it with conditions, deny it or waive it; certification would also be waived if the authority failed to act within the applicable period. On judicial review, the certifying authority would bear the burden of supporting a section 401 certification denial or condition by clear and convincing evidence.

For certain natural-gas pipeline and interstate electric-transmission projects, the certification inquiry and resulting permit conditions would focus on whether direct point-source discharges comply with applicable water-quality requirements. For such projects, the Act would impose a nine-month maximum review period.

The Act would also extend the maximum term of National Pollutant Discharge Elimination System permits and section 404 general permits from five years to ten years. It would require the U.S. Army Corps of Engineers to maintain nationwide section 404 permits for certain activities, including linear transportation projects and electric utility and telecommunications lines provided that the activity results in a discharge of dredged or fill materials into less than two acres of navigable waters for each single and complete project. The bill would also limit the period during which EPA may exercise its section 404(c) authority over an individual permit application, from submission of a complete application through permit issuance.

Endangered Species Act Consultation
The Act would streamline several ESA section 7 consultation benchmarks. The ordinary deadline for concluding formal consultation would fall from 90 to 60 days. For consultations involving a permit or license applicant, the point at which a proposed extension requires the applicant’s consent would fall from 150 to 100 days; the 100-day mark would not be an absolute deadline. The bill would also define “best scientific and commercial data available” in greater detail and require the Secretary to accept and integrate qualifying state-collected information in certain listing and delisting decisions.

The Act would also establish a program under which the Secretary of the Interior could, following implementing regulations and a written agreement, assign to qualifying states specified section 7 consultation responsibilities if they demonstrate sufficient legal authority, personnel, expertise and financial resources, and agree to meet the same deadlines that would govern the Secretary. A permit or license applicant could elect to consult with the Secretary even where a state has assumed those responsibilities.

Historic-Preservation Review
The legislation would restructure the NHPA section 106 process and more closely coordinate historic-preservation consultation with NEPA review. Where a project requires a NEPA environmental document, the NEPA lead agency generally would also serve as the lead agency for historic-preservation consultation. Consultation would begin no later than initiation of the NEPA review and ordinarily would need to conclude by completion of the NEPA document, absent an approved extension for extraordinary circumstances.

Formal consultation roles for Indian Tribes and Tribal Historic Preservation Officers would be retained, while establishing defined response periods. Generally, the relevant entity would have 30 days to provide substantive objections to specified agency reports or findings.

Durability of Existing Authorizations and Permits
Against the backdrop of federal stop-work orders for offshore wind projects following President Trump’s January 20, 2025, memorandum restricting new wind approvals, one of the Act’s most consequential provisions would strengthen the durability of previously issued federal authorizations and permits. The term “Federal authorization or permit” is defined broadly to include any authorization, permit, record of decision, right-of-way, finding of no significant impact, verification, extension, construction and operations plan, biological opinion, incidental take statement, concurrence or other approval or order necessary for a project’s construction or operation at full capacity, including an agency determination that no additional federal authorization or permit is required.

For projects or actions with nonfederal sponsors or holders of federal authorizations or permits, federal agencies would generally be prohibited from rescinding, suspending, altering or terminating a federal authorization or permit in effect on or after September 16, 2026, or otherwise interfering with construction or operation at full capacity of a project that has secured all necessary federal approvals. Exceptions would apply where the action is required by a court order; the authorization holder has materially breached the authorization or violated applicable law; the authorization was obtained through fraud; the action is necessary to prevent specific, urgent, substantial and proximate harm to life, property, national security or defense based on information not considered in the underlying review; or the authorization holder or project sponsor requests the action. Before acting, the agency would need to provide written notice explaining its action, authority and supporting evidence, and on judicial review, the agency would bear the burden of demonstrating by clear and convincing evidence that an exception applies.

Permitting Reforms to Electric Transmission, Grid Infrastructure and Other Energy-Specific Projects
The Act would substantially revise federal transmission-siting by amending section 216 of the Federal Power Act to require FERC, after notice and an opportunity for hearing, to issue a construction or modification permit to a qualifying facility in specified circumstances, including where state siting authorities have withheld approval for one year. Qualifying facilities generally would need to transmit electricity in interstate or foreign commerce, be consistent with the public interest, protect or benefit consumers and improve reliability and be capable of transmitting at least 230 kilovolts. For facilities operating at 345 kilovolts or more, a developer could submit its FERC application simultaneously with, or after, its state siting application, allowing the federal and state proceedings to run concurrently.

The bill would also streamline upgrades to existing grid infrastructure. Specified activities undertaken within or in the minimum necessary area adjacent to an existing right-of-way would not require preparation of an EA or EIS and would not be treated as a “major Federal action” under NEPA or an “undertaking” under NHPA section 106. Covered activities would include repair, maintenance, replacement, reconductoring, voltage increases, circuit additions or adjustments, advanced transmission technologies, certain energy-storage additions and parallel circuits.

Beyond transmission, the Act would establish or expand categorical exclusions, agency-review deadlines and other streamlined permitting pathways for specified renewable-energy, geothermal, hydropower, federal onshore-energy, hardrock mining and offshore-energy projects.

The Act does not amend the permitting requirements of the Clean Air Act, which has been a major hinderance to new refining capacity in the United States. Since the arrest of former Venezuelan president Nicolas Maduro and the start of military action in Iran earlier this year, the Trump Administration has looked for ways to increase gasoline and diesel production. Because the Act leaves Clean Air Act permitting requirements intact, efforts to expand U.S. refining capacity will still need to address those requirements. The Trump Administration may pursue additional executive action to spur expansion of refining capacity.

Conclusion and Next Steps
As introduced, the Act would make significant changes not only to how quickly federal agencies must complete environmental reviews, but also to the scope of those reviews, the availability of judicial challenges and remedies, the durability of issued permits and the division of responsibilities among federal, state and Tribal authorities. If the Senate passes the Act, it will move to the House of Representatives, where it faces an uncertain future: whether the Act will gain momentum and receive support in the House of Representatives remains to be seen. The House Natural Resources Committee Ranking Member Jared Huffman (D-CA) has stated that Democrats should wait until next year to have “a far better negotiating position” should Democrats win the majority in the House or Senate. The House Republican Leadership has not fully publicly endorsed the Senate bill yet and it is possible they will want to make some changes before bringing it to the House floor for a vote. There is also concern about the lack of time to get a deal done before the end of this legislative session. Congress has a short number of legislative days between the election and the end of the year to get this done and sent to the President’s desk for his signature.

Pillsbury will continue to monitor the Act’s progress and advise on how its provisions could affect existing and planned projects.