For years, the extraction industry has spent fortunes selling Americans a simple lie, that the laws protecting our land and water are the reason this country can’t build anything. It planted that lie in opinion pages across the political spectrum until it hardened into conventional wisdom, and this fall it finally paid off. Two of the Senate’s most prominent Democrats on public lands and climate have bought it whole, and they’re about to hand the results to Donald Trump.
They Told You Why This Deal Was Insane. Then They Agreed to It.
Last December, the two Senate Democrats with the most power over how this country builds on its land and water walked away from the table. Martin Heinrich, the top Democrat on the Senate Energy and Natural Resources Committee, and Sheldon Whitehouse, the top Democrat on Environment and Public Works, had spent months negotiating a “permitting reform” deal with Republicans. Then the Trump administration halted five offshore wind farms that were already under construction. The two senators issued a statement that should be framed and hung in every Democratic office in the Capitol. They pointed out that any deal they struck would have to be carried out by Trump’s own agencies, and they said his assault on wind energy “wrecks the trust needed with the executive branch for bipartisan permitting reform.” They were exactly right, and nothing about this administration has changed since they said it. On September 30, they introduced a new permitting reform deal anyway.
It’s called the Bipartisan American Affordability and Jobs Act of 2026, S. 5653. It runs 417 pages, and it was negotiated behind closed doors between Heinrich, Whitehouse, Republican Shelley Moore Capito of West Virginia, serial public lands thief Mike Lee of Utah, and the White House itself. The White House has said it hopes to pass it shortly after the election with the administration’s support. The Senate returns on November 9, and Capito wants this to be its first vote, which means a lame-duck Congress on its way out the door would pass it weeks before a new one is sworn in.
What’s In the Bill
The bill is a wholesale assault on the foundation of American environmental law. In a single blow, it guts four of the bedrock laws that have protected our land and water for more than half a century: the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act and the National Historic Preservation Act.
Start with the courts. Today, when an agency breaks the law to approve a pipeline or a mine, a judge can halt the project until the agency does its job. Under this bill, the judge can no longer stop the project. The bill’s text says the “only remedy the court may order” is to send the paperwork back to the agency “without vacatur or issuance of an injunction,” and the bulldozers keep running while the agency fixes it. It gives Americans 150 days to sue instead of six years, and only if they’ve already filed a detailed comment on the exact flaw they’re suing over. Judges would be ordered to give “substantial deference” to Doug Burgum’s Interior Department. Last December, when Heinrich was asked whether this administration would even obey a new permitting law, he answered, “Well that’s what the courts are for, right?” His bill takes the courts’ power away.
And the rigging starts long before anything reaches a judge. The National Environmental Policy Act, which Richard Nixon signed after it passed the Senate without a single dissenting vote, requires federal agencies to study what a major project will do to the land and water around it and tell the public before any action is taken. This bill lets agencies disregard any science published after a review begins, and it requires them to throw out any alternative that doesn’t “meet the goals” of the company asking for the permit. In other words, the company decides which options the government is even allowed to consider.
The bill doesn’t stop there. Once this administration approves a pipeline, a mine or a gas export terminal, a future president who tries to stop it could be forced to pay the developer a quarter to half of everything it has already spent, straight out of the U.S. Treasury, according to the Institute for Progress’s section-by-section breakdown. If a future administration slows approvals for an industry compared with the previous five years, which would be nearly all Trump’s years, developers could collect up to the full expected cost of construction in damages. The bill measures what counts as “fair treatment” against the most extraction-friendly administration in history, and then it makes you pay the industry if a future government dares to do better.
It does the same thing to Tribal Nations. Section 106 of the National Historic Preservation Act is what gives Tribes a voice before federal projects destroy their sacred sites. Under current law, agencies “shall” consult with Tribes and historic preservation officers. This bill changes that word to “may.” It narrows which places even count as culturally significant, bars courts from undoing a bad decision in most cases, and lets the federal government penalize or seize control of a Tribal Historic Preservation Office it decides isn’t “performing”. The National Association of Tribal Historic Preservation Officers called it a “legislative assault on the sovereignty of Tribal Nations.” This is the government-to-government relationship the United States owes Tribal Nations by treaty, and two Democrats who’ve spent careers claiming to honor it are happily trading it away.
Wildlife doesn’t fare any better. Under the Endangered Species Act, Fish and Wildlife Service biologists review any federal project that could harm a protected species, and their findings can require changes to protect it. That’s a big reason the law has kept 99 percent of listed species from going extinct. This bill would let states apply to take over those reviews, handing grizzly consultations to Wyoming, or sage grouse to whatever state legislature the oil and gas industry owns that year. And wherever USFWS keeps the job, the bill cuts its review clock from 90 days to 60, even though it’s already lost more than a third of its staff.
Your water also gets thrown under the bus. Section 401 of the Clean Water Act has long let states and Tribes refuse to certify a federally permitted project that would foul their rivers and drinking water. Under this bill, a state could only say no by proving “by clear and convincing evidence” that no condition could fix the problem, and any condition it imposes would have to be the “least burdensome” option for the developer. Gas pipelines get an even sweeter deal, with reviews limited to direct discharges from a single point and states given nine months instead of a year. The bill even strips EPA of the power to veto a destructive wetland permit once it’s been issued.
And don’t worry, they didn’t forget to target public lands directly. In 2022, a federal appeals court ruled that the company behind Arizona’s Rosemont copper mine couldn’t dump millions of tons of waste rock on neighboring Forest Service land. This bill overturns that ruling, letting mining companies stake as many five-acre waste sites on public land as they deem “reasonably necessary,” for $400 a year apiece. Yes, that’s $80 an acre. Try finding rent like that anywhere else.
Put it all together and you get a blueprint for building (or destroying) whatever this administration wants, wherever it wants it, with the public locked out of both the hearing room and the courthouse. And future administrations friendlier to public lands would be virtually powerless to stop it.
A Cheap Date
So what did Democrats get for all this? Heinrich and Whitehouse will hand you a list, so let’s go through it honestly. Their headline prize is something called “permit certainty,” which they sell as a shield against Trump’s war on wind power. Read the fine print and it covers 47 kinds of projects, including oil and gas drilling, pipelines, gas export terminals and mines. For every wind farm it protects, it locks in far more of the drilling and mining this administration is racing to approve. Next on their list is transmission. The bill lets federal regulators override states that reject big interstate power lines and lets developers take private land through federal eminent domain, something rural communities across the country have fought for years. Then there are the data center protections, which mostly amount to an instruction to Trump’s own energy regulators to go write some rules.
Now look at what they paid for it. They put up the laws that generations of Americans fought for to protect their land and their quality of life. Traded away to industry for a hill of beans. Every one of those losses is written directly into law, and every one takes effect the moment Trump signs it. What they got in return is mostly a request that the Trump administration write its own rules. We know exactly how that goes. Democrats traded guarantees that can never be taken back for promises from people who’ve broken every promise they’ve made.
In March, when they reopened permitting reform talks, Heinrich and Whitehouse warned the administration that “further mischief will undo our willingness to resume negotiations.” The administration spent the next six months making fools of them. It paid developers $4 billion of public money to abandon offshore wind farms while keeping roughly 300 wind projects frozen. Then it offered to release 30 of them, and threatened to pull even that unless Democrats signed the bill as written. A Republican senator’s spokeswoman told them to “take the win.” Whitehouse’s answer was to tell reporters he appreciated “very much what the Trump administration has done to move in this direction.” He thanked the people holding the hostages for releasing one in ten. Senate Majority Leader John Thune bragged on the floor that Democrats had gotten essentially everything they asked for, and he’s right. They asked for almost nothing.
Two of the most powerful Democrats on public lands accepted the extraction industry’s oldest lie, that the laws protecting our land and water are what’s holding America back, and they’re writing it into federal law in partnership with Mike Lee, the Senate’s most relentless champion of selling off our public lands, and the administration most hostile to those lands in modern history. They sold out your land and called it a win. In June, Heinrich told Heatmap that big projects need “a leader in the White House” to keep federal agencies working constructively. He got his wish. This White House helped write the bill, and every Democrat who votes for it will have turned traitor to the public lands they claimed to defend.
They Gutted the Agencies, Then Blamed the Laws
The whole premise of this deal is false, and the people who negotiated it should know that better than almost anyone in Congress.
For years, Americans have been told that our environmental laws are why this country can’t build anything. As we’ve documented again and again, that story has been manufactured and sold to the public through an endless stream of op-eds.
Martin Heinrich is not a fool. Few members of Congress spend more time on America’s public lands or seem to love them more, and he’s built his entire career on that image. His votes tell a different story. He voted to confirm Doug Burgum to run the Interior Department and Brooke Rollins to run Agriculture, and he was one of only two Democrats to put Brian Nesvik in charge of the Fish and Wildlife Service. This despite all three being obviously anti-public lands long before a single vote was cast. Insiders tell More Than Just Parks he nearly voted to confirm Steve Pearce to run the Bureau of Land Management, despite Pearce’s egregious record on public lands. And now here he is, trading away some of their most critical protections for the lie of “permitting reform.” Why? We’ll dig into that in a subsequent article.
Here’s what the evidence actually says, and it’s said the same thing for years. The Government Accountability Office found that about 95 percent of federal environmental reviews are simple categorical exclusions, and fewer than one percent actually require a full environmental impact statement. Fewer than 5 percent of wind and solar projects built between 2010 and 2021 ever needed a comprehensive review. Only one in every 450 NEPA decisions is ever challenged in court, and agencies win about 80 percent of the NEPA cases that reach federal appeals courts. And of all 88,290 Endangered Species Act consultations from 2008 to 2015, not a single project was stopped or extensively altered.
So what actually slows projects down? The largest study of its kind, covering more than 41,000 Forest Service reviews, found that delays come mostly from inadequate agency budgets and staff turnover. Its authors put it plainly: “If Congress wants expedited permitting, Congress should fully staff and fund federal agencies,” they wrote. A 2024 review of more than 40 studies reached the same conclusion. So did a sweeping 2025 legal review drawing on years of GAO investigations. Even industry knows it. When Trump’s hiring freeze and cuts left Wyoming’s federal land offices short-staffed this spring, the state’s mining industry pleaded for help: “We need people working on permits.” And when the government invests in people, it works. After Biden’s Inflation Reduction Act invested in agency permitting staff, the median time to complete a full environmental impact statement fell from 3.1 years to 2.4.
That’s the whole solution. Hire the biologists, foresters, hydrologists, and planners who do these reviews and the archaeologists, GIS specialists, and administrative staff who keep them moving. Pay them, train them, keep them, and treat them like the public servants they are. It’s simple, it’s incredibly cheap compared to almost anything else Congress spends money on, and it would speed up every kind of project at once without stripping a single protection from a single river.
This administration has done the exact opposite. The Fish and Wildlife Service has lost 36 percent of its staff since 2024, including more than 1,900 scientists, and by January the Forest Service had lost 5,860 people. BLM is on track to lose more than 40% of its staff compared to 2024.
They gutted the agencies, and now they’re pointing at the agencies diminished capacity as proof the laws need to go. And what does this 417-page bill offer the people who are left? A permitting fund authorized at $20 million a year for the entire federal government, a fraction of what the Inflation Reduction Act provided, and a drop in the bucket compared to what’s needed. And it offers punishment. If an agency misses one of the bill’s new deadlines, its senior permitting officials must spend half of every workweek on that one project, and the agency head is barred from traveling more than 25 miles from the office until it’s done. I’m sure this will improve the all-time lows in employee morale though.
Who’s Celebrating
When the bill dropped, the American Petroleum Institute’s president called it a “generational” opportunity. The Edison Electric Institute, which represents for-profit utilities, said it was encouraged by provisions that “create project certainty.” The National Mining Association praised it the day it came out. When the oil industry and the mining industry both look at a bill sponsored by two Democrats and see a generational opportunity, you should ask yourself whose generation they mean.
We’ll Be Keeping Score
You’ll hear a familiar argument over the next few weeks from the people pushing this deal. They’ll say it’s now or never, that Trump will sign this and won’t sign anything better, and that the planet can’t wait. Representative Jared Huffman, the top Democrat on the House Natural Resources Committee, has the right answer to that logic. If Democrats have to take whatever Trump agrees to sign, he said, then “by that reasoning, you should just always do what Trump demands.”
Our Congressional Public Lands Scorecard grades every member of Congress on the votes that decide whether our lands stay public, stay protected, stay properly funded and stay in the hands of competent agencies. This bill currently fails every one of those tests. A vote for it will be scored as a vote against public lands, and it’ll count the same whether it comes from a Republican or from a Democrat who’s spent years telling you he’s on your side. Nobody gets graded on a curve because they meant well.
The laws on the table in this bill were won by people who watched rivers catch fire and species disappear and communities get poisoned, and who demanded a say before it happened again. Generations of Americans built that inheritance, and it belongs to all of us. It isn’t Martin Heinrich’s to trade for transmission lines, and it isn’t Sheldon Whitehouse’s to trade for a handful of wind farms.
What You Can Do
Go to our Congressional Public Lands Scorecard, find your senators and representative, and get on the phone. It doesn’t matter whether they’re Republicans or Democrats. Every one of them needs to hear that the so-called Bipartisan American Affordability and Jobs Act of 2026 (S. 5653) is a sellout of our public lands, and that a vote for it will follow them for the rest of their careers. Don’t accept “I’m reviewing the bill” or “I have concerns.” Demand a no vote, on the record, before November 9.
And call the two Democrats who wrote it. Martin Heinrich’s office is at 202-224-5521, and Sheldon Whitehouse’s is at 202-224-2921. Let them know what a betrayal this is.
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