This week, a group of senators announced the Bipartisan American Affordability and Jobs Act (BAAJA), a permitting reform deal that will cut red tape and reduce the time it takes to build new clean energy projects. The lead negotiators on the Democratic side, Senators Sheldon Whitehouse and Martin Heinrich, are staunch climate champions, and they have produced a very strong bill.
According to a just-released analysis by Greenline Insights, BAAJA lowers Americans’ energy bills by $1.1 billion, reduces natural gas from 45% to 39% of our energy mix, increases the deployment of battery storage by 65%, solar by 22%, and wind by 14%—all while cutting emissions by 9%. My colleagues Jane Flegal and Pavan Venkatakrishnan make a persuasive case for the bill on the merits. I want to explain why this is good politics—and why it needs to get done fast.
The plan
The current plan is for the Senate to vote on the bill first thing when it reconvenes after the midterm election, during what’s known as the lame duck session. It’s good to see permitting reform prioritized, but having worked through several lame duck sessions myself, I can tell you that this doesn’t guarantee that the bill will pass—far from it.
As a general rule, lame duck sessions are unpredictable and fraught with risk. That’s because the deadline to adjourn is hard and fast—there is no extending it past January 3rd, per the Constitution. Anything left undone at that point gets erased, like wiping a hard drive; Congress adjourns sine die, a new one is sworn in, and every bill must be introduced anew. (The permitting reform bill is number 5653—starting on January 3rd, bill numbers will go back to number one.)
These weeks can be sleepy or enormously productive. When I was working for Senator Harry Reid, we used the 2010 lame duck to repeal Don’t Ask, Don’t Tell, pass a major nuclear treaty, and enact a sweeping new tax law.
This current lame duck is shaping up to be a doozy. In addition to permitting reform, Congress needs to pass a government funding bill, a defense authorization bill, and legislation to extend expiring surface transportation programs. Majority Leader Thune has also floated taking action on the debt ceiling. That’s a lot of work in what will ultimately amount to four legislative weeks, accounting for holidays.
Why pass permitting reform in the lame duck?
The main reason to pass this bill now is that it’s a very good bill and if Congress doesn’t pass it, it gets erased on January 3rd.
Theoretically, negotiators could always reintroduce it. And some have argued that Democrats should wait until they have more power—as of today, they are favored to take control of both chambers.
But for a deal like this to come together, pass both chambers, and get signed into law by the president requires a perfect storm. It’s not just about hashing out the text of the bill—negotiators need to be motivated to support it, as do enough members in each chamber to pass it.
The conditions that produced this breakthrough are going to change next Congress. Sheldon Whitehouse, one of the two lead Democratic negotiators, is rumored to want to leave the Energy Committee to chair the Judiciary Committee. His successor might be less likely to prioritize negotiations, or may want to rewrite the bill entirely to assert their ownership. On the Republican side, negotiators will understandably feel burned if Democrats walk away during the lame duck, and are unlikely to be motivated to come back to the table during the next Congress. When the band breaks up, it’s hard to get them back together.
Congressman Jared Huffman, who is poised to take over as chair of the House Natural Resources Committee if Democrats win the House, has floated the idea that he can secure a better deal. Specifically, he and other Democrats want a deal that does more to constrain Trump’s ability to cancel wind and other clean energy projects.
The problem with this thinking is twofold. First, the existing deal provides strong new tools to constrain Trump, and rejecting it will give him free rein for as long as it takes to secure a new deal—which likely would be years, leaving him free to cancel clean energy projects in the meantime. The new tools to constrain Trump in BAAJA are better than no new tools, which is what you’d have if you reject this deal.
The second problem with the “get a better deal later” line of thinking is that Trump will still be president. For any bill to become law, he has to sign it. The idea that Democrats can reject this deal and force Trump to accept a new one next Congress with even stronger restraints on his power is downright fanciful.
Don’t forget about the House
There is nothing the House hates more than getting jammed by the Senate—that is, having the Senate drop a bill in its lap as a take-it-or-leave-it proposition. The House is a coequal branch of government. Under regular order, each chamber would pass its own version of the bill, then get together and hash out what’s called a “conference report,” or a consensus version that would then be approved by both chambers. While true regular order is vanishingly rare these days, it is still typical for one chamber to pass a bill, then have the other chamber make changes and bounce it back. This “ping-pong” happens until consensus is reached.
Unfortunately, we don’t have time for ping-pong. If the House changes so much as a comma of BAAJA, the bill will have to go back to the Senate to be passed again—a daunting proposition given the time crunch. Moreover, there is the larger threat that reopening the bill to major substantive changes is likely to upset the delicate balance negotiators achieved, and alienate any of the factions and stakeholders whose support is necessary to pass it into law.1
Set the next Democratic president up for success
Another reason to pass this bill now is that it will set the next Democratic president up for success.
The fate of our democracy could very well ride on the 2028 presidential election, and if Democrats do not win the White House, we will have bigger problems than permitting. But if Democrats do win, they will come into office with an ambitious agenda and an urgent need to show the American people they can deliver. Time and political capital are finite resources, and the next president will want to dedicate them to things like achieving universal healthcare, expanding the social safety net, and making the wealthy pay their fair share in taxes. The next Democratic president does not need permitting reform eating up valuable legislative energy.
On climate specifically, Democrats can’t afford to repeat the mistakes made under Biden’s presidency, when onerous permitting requirements—those targeted for reform in BAAJA—caused climate investments to go unspent and left them as sitting ducks for Republicans to kill when they took back power. It would be a self-own on a historic scale for Congressional Democrats to make the next Democratic president start from square one, facing the same hurdles to building clean energy projects that hamstrung Biden.
Moreover, the problem of high energy prices will not magically disappear. BAAJA will bring down energy prices, but it will take time for its effects to be felt—indeed, this could begin right around 2030, when the new Democratic president will be facing their first midterm.
I’m thinking a few elections into the future here, but that’s exactly the sort of mindset Democrats need to adopt. Republicans will remain an active threat to democracy and the rule of law after 2028. It is vitally important to position the next Democratic president to hit the ground running, with a legislative blitz that shows the American people we can deliver for them.
Passing this bill now isn’t just about fighting climate change and lowering energy prices—it is about setting Democrats up to govern successfully. This is a good bill, and Congress should pass it.
This does not count changes made via what’s known as a “manager’s amendment,” which is sort of a cleanup amendment to make technical fixes after a bill is introduced.