Why It Matters
A pending permitting-reform bill would substantially rewrite Section 106 of the National Historic Preservation Act (NHPA), narrowing which projects face review, defining adverse effects more narrowly, creating review deadlines, limiting judicial remedies, and eliminating required public involvement, according to a new Congressional Research Service (CRS) report. The report repeatedly qualifies the likely reach of those changes, noting that effects are "unclear" and depend on future regulatory, agency, or judicial interpretation.
S. 5653, the Bipartisan American Affordability and Jobs Act (BAAJA) of 2026, was introduced Sept. 30 and referred to the Senate Committee on Energy and Natural Resources the same day, with no further action recorded as of the report's Oct. 30 publication date.
The Big Picture
BAAJA emerged from negotiations among the chairs and ranking members of the Senate Environment and Public Works Committee, along with the Senate Energy and Natural Resources Committee, aimed at expediting federal environmental review and permitting with an emphasis on energy projects. A majority press release from the Senate Committee on Energy and Natural Resources stated the legislation "will strengthen American energy security by accelerating the permitting process for critical energy and mineral projects across the United States."
On Section 106 review, BAAJA would narrow covered undertakings by requiring "substantial" federal control, remove "indirect" effects and "feeling" from the definition of adverse effect, and specify when consultation with State Historic Preservation Officers and Tribal Historic Preservation Officers is required. The report notes that BAAJA "would not provide for any required public involvement during the review process."
On program oversight, BAAJA would require evaluations of state historic preservation programs at least every two years, half as often as the current four-year statutory interval. However, CRS also flags a possible federalism concern, namely that the bill would require state officials to facilitate federal review under penalty of losing Historic Preservation Fund (HPF) grants.
On funding, BAAJA would authorize $200 million annually for the HPF for fiscal 2027 through fiscal 2036, $50 million more per year than the $150 million annual level set by P.L. 119-74, enacted Jan. 23. The bill would also create a new competitive grant program for Tribal Historic Preservation Officers, with $20 million annually authorized for fiscal 2027 through fiscal 2030.
The report ties BAAJA's "substantial deference" language to the Supreme Court's May 2025 decision in Seven County Infrastructure Coalition v. Eagle County and notes that Loper Bright Enterprises v. Raimondo, decided June 2024, means agency legal interpretations are now reviewed without deference.
The Bottom Line
S. 5653 was introduced Sept. 30 and referred to the Senate Committee on Energy and Natural Resources the same day, with no further legislative action recorded as of Oct. 30.
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