Daniel Stephen

The "project certainty" title of the bipartisan permitting bill, BAAJA, was written to respond to the Trump Administration’s actions targeting renewables. However, some critics worried it would unduly limit a future administration’s ability to promulgate new regulations protecting public health or the environment, or inadvertently “lock in” the current administration’s energy policy. I have spent all day poring over this part of the manager’s amendment, released this morning. I’ve concluded the amendment’s changes should put to bed all but the most far-fetched concerns about such unintended consequences: 1. *Generally applicable regulations are not barred.* The original language raised concerns that protecting permits could also limit routine permit changes or new regulations as “interference” with a permit. The amendment adds an explicit exception for agency actions taken under applicable law or regulation, plus language preserving existing legal authority. 2. *A good faith mistake no longer can trigger a payout.* Originally, an agency that improperly interfered with a permit could owe 25–50% of project costs without any showing of bad faith. Now that extra award requires bad faith, a difficult standard to prove. 3. *Relatedly, permits denied lawfully in good faith cannot form a pattern of disparate treatment.* Section 1402 targets patterns of discrimination against particular types of energy projects. The original bill’s phrase “improperly denied” was worryingly vague. The amendment replaces it with “denied in bad faith.” This is a standard used in, e.g., APA record expansion claims. 4. *The government can explain any allegedly discriminatory patterns.* Critics understandably worried agencies could face liability based on statistics alone without being able to explain why approvals slowed or denials increased. The amendment expressly lets the government present evidence of a lawful reason for the pattern, such as a new legal public health measure aimed at reducing pollution and not “interfering” with a particular industry. 5. *Judicial "checks and balances" are required before any payments.* Critics identified some scenarios in which a friendly administration could intentionally interfere with a favored developer’s permit, with the purpose of subsidizing the developer. That already far-fetched scheme would now need to survive scrutiny by a federal judge. Settlements need specific court findings that they advance the section’s objectives and serve the public interest. 6. *Historical comparisons go beyond any one administration.* Section 1402’s baseline in the amendment expands from five years to ten. That makes it harder for a few years of hostility toward wind or solar to become the “normal” treatment against which future conduct is measured. 7. *No comparison between different project types or energy policy "lock in."* Many critics worried that the “baseline” of approvals – for instance, a percentage of renewable compared to fossil fuel projects – would need to continue in any future administration. That was not in the original bill, nor is it in the amendment. Comparisons are only between the rate of unreasonable delays or bad faith denials within a project category, not between categories. The amendment meaningfully responds to the strongest critiques and preserves ordinary regulation, distinguishes legal error from bad faith deliberate interference with a project or industry, and subjects payments to judicial scrutiny.