Why It Matters
Senate permitting legislation would bar many changes to existing federal permits and could raise Judgment Fund payments, according to a new Congressional Research Service (CRS) report.
The report analyzes the project certainty provisions in Title IV of the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA), S. 5653, as introduced. Section 1401 would generally bar agency actions that revoke, suspend or alter permits, with five exceptions, and would entitle prevailing plaintiffs to damages of 25% to 50% of total project costs.
CRS says Sections 1401 and 1402 "could substantially increase payments from the Judgment Fund relative to historical baseline averages." Congress could respond by limiting Judgment Fund payments under those sections to court-ordered awards, or by clarifying how Section 1401 interacts with existing statutes.
The Big Picture
Section 1402 would let developers of certain energy projects sue over permit delays or denials "due to a pattern of disparate treatment." Prevailing plaintiffs would be entitled to damages of 50% to 100% of reasonably expected construction costs. Section 1403 would allow suits to enforce a one-year decision deadline for permits that need no environmental assessment or environmental impact statement, with injunctive relief but no damages.
The Judgment Fund is a permanent, indefinite appropriation that also pays settlements. CRS says a claimant under Section 1401 or 1402 would not need to prevail in court, or even file suit, and could instead settle with the Department of Justice.
For scale, CRS reports that the fund paid an average of roughly $3.5 billion a year from fiscal 2009 through fiscal 2025. Between late April and mid-October, the Department of Justice and the Department of the Interior drew roughly $3.8 billion to pay 10 settlements with offshore wind developers, CRS says. Those payments corresponded to amounts developers had paid for leases that Interior later decided to cancel.
On a separate track, the New Jersey Attorney General announced June 2 that a coalition of states had sued over a lease-cancellation settlement. The states ask the court to vacate it and restore the leases.
CRS calls Section 1401's effect on other laws uncertain. A court could read it to stop the Environmental Protection Agency from issuing stricter rules, but courts also apply a presumption against implied repeals. On Section 1402, CRS says it is unclear whether liability requires proof the government intended a pattern. If not, "even lawful, good-faith permit denials could give rise to liability."
Past proposals have targeted Judgment Fund payouts. Rep. Jamie Raskin (D-MD) sponsored H.R. 8914, the No Taxpayer-Funded Settlement Slush Funds Act of 2026, which would restrict use of the fund for certain settlements and judgments. It was referred to the House Judiciary Committee on May 20. Sen. James Lankford (R-OK) sponsored S. 386, the Judgment Fund Transparency and Terrorism Financing Prevention Act of 2017, which was referred to the Senate Judiciary Committee on Feb. 15, 2017.
The Bottom Line
S. 5653 has been in the Senate Energy and Natural Resources Committee since Sept. 30. Committee action is the next stage before the bill could reach the Senate floor.
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