Democrats, Split the Deal: Why the Senate’s Lame-Duck Permitting Bill Is a Trap

On November 12, the New York Times editorial board urged Congressional Democrats to pass the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA, S. 5653), which cleared a 73–25 Senate cloture vote on November 9 after negotiators inserted a 494-page weekend substitute amendment into H.R. 2347, an unrelated House bill sparing sexual-assault survivors taxes on legal settlements.

To the Times, Democrats who just won a sweeping midterm victory must swallow this lame-duck package—drafted behind closed doors with no hearing, no markup, and no committee report—because President Trump "would almost certainly veto a follow-up bill next year," and because "[o]pponents of the bill, such as the Sierra Club, complain that it might harm the environment."

That counsel gets both the policy and the politics backward. The Times is right about transmission bottlenecks and right to credit Senators Martin Heinrich, Sheldon Whitehouse, and Brian Schatz for building strong grid reforms into Division B, Title I—provisions the League of Conservation Voters and Earthjustice applaud.

But splitting what works from what breaks bedrock law does not require passing a poisoned package in a rushed lame duck. House Leader Hakeem Jeffries and Congressional Democrats should strip the bill's toxic environmental, judicial, Tribal, and detention riders before any final vote—or reject this text and legislate from strength when the 120th Congress convenes on January 3, 2027.

1. What the Times Gets Right Does Not Require This Bill

Every constructive measure the Times praises can advance without Section 1401 or courtroom lockouts:

• Transmission & Emissions: Division B, Title I reforms FERC’s unused backstop siting authority (Section 2101), requires 20-year regional and consolidated interconnection planning (Sections 2103 and 2106), promotes grid-enhancing technologies (Section 2109), and restricts federal rights of first refusal (Section 2105) (Bipartisan Policy Center). Notably, the Rhodium Group estimate cited by the Times—that BAAJA cuts power-plant emissions by "as much as 18 percent by 2040" by nearly tripling high-voltage transmission—reflects an upper-bound power-sector gain driven by Title I grid lines that critics already support, while omitting upstream emissions from Title II drilling and Section 2102 gas-pipeline exemptions.
• Data-Center Ratepayer Rules: Section 2107 directs FERC within 90 days to enforce "And Pricing" and bars shifting incremental service costs from data centers of any size onto household bills (BPC). Yet Section 2107 already "shares some key principles" with the standalone Ratepayer Protection Act (H.R. 9340) that passed the House—proving Congress can shield families without gutting NEPA or the Clean Water Act. Nor does reallocating transmission fees cure demand-driven wholesale rate spikes: a Dallas Fed working paper cited in Sen. Heinrich’s fact sheet estimates data centers have already lifted wholesale electricity prices 6.9% nationally, projecting 12.3% by 2028.
• Sewer Repairs & Survivor Tax Justice: Congress does not need 494 pages of corporate shields to fix a burst Potomac pipe or a Connecticut traffic signal. BAAJA’s Section 1102 excludes "lifeline infrastructure repairs that do not increase capacity by more than 20%"—a clean fix Congress can pass alone (noting DOT projects over $10 million still trigger NEPA). Likewise, bipartisan tax relief for sexual-assault survivors (Division C, Section 3001; C2ES) deserves passage on its own merits, not as a procedural shell to skip hearings and markup.

2. The Veto Argument Cuts Against Passing This Bill Now

The Times’s core strategic claim—that "President Trump would almost certainly veto a follow-up bill next year"—confesses defeat before the new Congress even sits. Worse, it refutes itself: if Trump would veto cleaner Democratic reforms in 2027, he will just as surely veto any repeal of BAAJA’s Section 1401 lock-ins. Passing this bill now is not a "first step"; under the Times’s own premise, its flaws become durable law through at least 2029. Meanwhile, BAAJA’s grid timelines span years anyway: FERC’s backstop applies only after a state has had one year to act, and RTOs have two years to adopt consolidated planning (BPC).

Refusing a lame-duck deal also preserves real leverage. The White House, utilities, and tech firms want a permitting bill, and those needs do not vanish on January 3. Voters just handed Democrats control of both chambers—reportedly about 54 Senate seats and a large House majority, only the fourth dual-chamber midterm flip since World War II. Yes, 60 Senate votes remain a hurdle. But holding the gavels lets Democrats negotiate from strength and tie infrastructure modernization to concrete household affordability policies rather than corporate giveaways—forcing Trump, if he dares, to veto lower utility bills.

Passing BAAJA now instead rewards bad faith and risks alienating the coalition that elected a Blue Wave in a race shaped by opposition to AI data centers and anger at corporate capture. As Senate voting began November 9, Trump was recorded saying he would not honor his promise to approve wind projects if Democrats backed the bill.

3. Not "Complaining About the Environment": Multi-Decade Lock-In and Courtroom Closure

Dismissing critics as "Opponents of the bill, such as the Sierra Club, complain that it might harm the environment" erases legal machinery engineered to outlast elections and strip communities of judicial protection.

On paper, Title IV’s "Project Certainty" remedies look evenhanded—echoing ~$3.8 billion paid across 10 offshore wind cancellation settlements between April and October 2026 from the permanent, off-budget Judgment Fund (31 U.S.C. § 1304, which averaged ~$3.5 billion annually FY2009–FY2025; CRS R49511; Legis1). And the November 7 manager’s amendment tightened Section 1402’s 50%–100% construction-cost damages for "disparate treatment" across 46 energy and mining categories by requiring a 10-year statistical baseline, intentional conduct, bad-faith denials, and a court judgment or approved settlement (BPC).

Yet even Earthjustice—while crediting those Section 1402 fixes—warns that Section 1401 remains fatally broken. Section 1401 bars agencies from revoking, suspending, or materially altering permits active on or after November 6, 2026—what the Center for Progressive Reform terms a "first president to act wins" rule—backed by injunctions and 25% to 50% of development and construction costs for bad-faith interference. Crucially, Section 1401’s "court order" exception is hollowed out by Sections 1110, 1134, 1205, and 2301, which shrink filing windows from six years to 150 days, route suits straight to federal appeals courts, require "direct harm" and post-enactment issue comments (exempting consulting Tribes under NHPA), mandate "substantial deference" under NEPA and NHPA, and limit NEPA and NHPA remedies strictly to 180-day remand without vacatur or injunction. Even if an agency issues a one-sentence EIS, courts cannot halt construction unless another federal law is violated. (Only Endangered Species Act Section 1305—which trims consultation clocks from 90 to 60 days and lets states assume reviews—preserves vacatur and injunctions.)

Because Trump controls federal permitting until January 2029, Section 1401 lets his administration lock in LNG terminals, pipelines, and coal projects that successors cannot unwind even if granted illegally, while former EPA staff warn it could obstruct Clean Air Act rules against existing sources (CPR). Meanwhile, BAAJA bolts fossil giveaways onto grid rules: doubling maximum terms for Clean Water Act NPDES and Section 404 permits to 10 years (delaying PFAS limits), restricting state and Tribal Section 401 reviews of transmission lines and interstate gas pipelines to direct point-source discharges within nine months, exempting gas pipeline upgrades within a quarter-mile of existing corridors from NEPA and historic review (Section 2102), doubling NEPA-exempt pipeline corridor lifetimes to 10 years (Section 2229), ending federal drilling permits on split-estate land under 50% federal ownership (Sections 2211 and 2225, where state permits and royalties still apply), and overturning Rosemont to allow as many five-acre mining waste mill sites as "reasonably necessary" at $400 a year (BPC; C2ES).

4. ICE Warehouses, Tribal Sovereignty, and the Coalition the Times Erased

Two silent casualties inside BAAJA explain why civil-rights and Indigenous groups are sounding the alarm:

• ICE Detention Mega-Warehouses: According to Detention Watch Network (PDF), ICE spent $1 billion in early 2026 buying 11 industrial mega-warehouses—part of its goal to detain at least 100,000 people at a given time—without NEPA review. NEPA suits by Arizona, Maryland, Michigan, New Jersey, and cities in Texas, Georgia, and Utah, led by Maryland’s April preliminary injunction, stalled conversions and forced ICE to put warehouses up for sale. DWN and Earthjustice VP Raul Garcia warn that BAAJA threatens those wins: the government may argue Section 1102 shields state detention grants (such as Florida’s proposed Alligator Alcatraz), Section 1110 bars NEPA injunctions or vacatur, and Section 1401 (amended Nov. 7 from "full" to "normal capacity") could prevent future presidents from modifying or halting approved centers.
• Tribal Consultation & Sacred Landscapes: On November 8, the National Congress of American Indians urged a "NO" vote on cloture, blasting a "classic legislative bait-and-switch": while committee summaries touted stripping the Advisory Council on Historic Preservation’s (ACHP) authority to sign agreements instead of "an Indian tribe," the bill text kept ACHP substitution in place of a "Tribal Historic Preservation Officer" (which BPC confirms). With 30- and 45-day clocks, removal of Section 303103 mandatory Historic Preservation Fund funding, and narrowed project boundaries, NCAI and the Native American Rights Fund warn sacred sites—Mount Taylor and Greater Chaco in New Mexico, Bears Ears in Utah, and Bahsahwahbee and Avi Kwa Ame in Nevada—face piecemeal destruction.

No wonder the NAACP warned BAAJA "puts our community and our planet’s health in the hands of billionaires," joining more than 140 allied organizations, Al Gore, Sen. Jeff Merkley, Rep. Jared Huffman, New Mexico Gov.-elect Deb Haaland, Reps. Melanie Stansbury and Teresa Leger Fernàndez, and six state attorneys general led by New Mexico AG Raúl Torrez (WELC). An Earthjustice-commissioned poll cited by WELC found voters prefer maintaining environmental laws over weakening them, 77% to 23%.

Democrats were elected to confront corporate power and lower family bills—not lock in Trump’s fossil and detention agenda in a lame-duck ambush. Split the deal to pass clean transmission, data-center ratepayer protections, and survivor tax relief cleanly, or wait for the new Congress and legislate like winners.